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  1. Markets, Rights, and Discrimination by Customers.Heather Whitney - 2016 - Iowa Law Review 1 (102).
    This essay is designed to do two things: -/- First, review and critique Katharine Bartlett and Mitu Gulati's Discrimination by Customers, 102 Iowa L. Rev. 223 (2016). -/- Second, stand alone as a piece that more generally evaluates (1) efficacy and (2) autonomy- and constitutional-based objections to the regulation (both in direct and indirect form) of customer discrimination.
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  2. The Liberator.Mesut Kavak - manuscript
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  3. Конституция общности Русь.Andrej Poleev - 2017 - Berlin, Germany:
    Конституция общности Русь введена в действие Указом от 26 февраля 2017 года.
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  4. Parents, Privacy, and Facebook: Legal and Social Responses to the Problem of Over-Sharing.Renée Nicole Souris - 2018 - In Ann Cudd & Mark Christopher Navin (eds.), Core Concepts and Contemporary Issues in Privacy. Springer. pp. 175-188.
    This paper examines whether American parents legally violate their children’s privacy rights when they share embarrassing images of their children on social media without their children’s consent. My inquiry is motivated by recent reports that French authorities have warned French parents that they could face fines and imprisonment for such conduct, if their children sue them once their children turn 18. Where French privacy law is grounded in respect for dignity, thereby explaining the French concerns for parental “over-sharing,” I show (...)
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  5. Review of Fukuyama, Identity, The Demand for Dignity and the Politics of Resentment. [REVIEW]H. G. Callaway - 2019 - Law and Politics Book Review 29 (6):63-68.
    In his new book, IDENTITY, THE DEMAND FOR DIGNITY AND THE POLITICS OF RESENTMENT, Stanford University political scientist Francis Fukuyama addresses themes which might more properly be considered matters of political and legal philosophy. In particular, though he affirms the importance of the concepts of human dignity and identity, more or less as these are commonly understood in contemporary political debates and judicial decisions, he also sets himself against the contemporary phenomenon of identity politics which he views as a danger (...)
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  6. Remixing Rawls: Constitutional Cultural Liberties in Liberal Democracies.Jonathan Gingerich - 2019 - Northeastern University Law Review 11 (2):523-588.
    This article develops a liberal theory of cultural rights that must be guaranteed by just legal and political institutions. People form their own individual conceptions of the good in the cultural space constructed by the political societies they inhabit. This article argues that only rarely do individuals develop views of what is valuable that diverge more than slightly from the conceptions of the good widely circulating in their societies. In order for everyone to have an equal opportunity to autonomously form (...)
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  7. Equality Before the Law: A Substantive Constitutional Principle.Michael P. Foran - 2020 - Public Law 2:287-306.
    The principle of equality before the law is often characterized as procedural or formal in nature. Recent scholarship has offered a more nuanced representation of this critique, maintaining that the principle is procedural in nature but emphasizing its instrumental value. This paper challenges that characterization, arguing that equality before the law is best interpreted as a foundational constitutional principle which manifests substantive restrictions on the content of legal rules. Equality before the law, as an independent constitutional principle, should not be (...)
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  8. The Logic of Legitimacy: Bootstrapping Paradoxes of Constitutional Democracy.Christopher F. Zurn - 2010 - Legal Theory 16 (3):191-227.
    Many have claimed that legitimate constitutional democracy is either conceptually or practically impossible, given infinite regress paradoxes deriving from the requirement of simultaneously democratic and constitutional origins for legitimate government. This paper first critically investigates prominent conceptual and practical bootstrapping objections advanced by Barnett and Michelman. It then argues that the real conceptual root of such bootstrapping objections is not any specific substantive account of legitimacy makers, such as consent or democratic endorsement, but a particular conception of the logic of (...)
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  9. A destruição do inimigo público inominado: uma interpretação do político em Carl Schmitt.Felipe Alves - 2017 - Revista de la Facultad de Derecho 43 (1):259-286.
    This paper proposes a critical analysis of the essential criteria to define the concept of the political as presented by German jurist and philosopher, Carl Schmitt. Based on the essence of the political -i.e. the friend-enemy duality-, the objective is to explore the practical implications resulting from the actual possibilities of confrontation, the key scope being the analysis of a totalitarian potential from a Schmittian´s perspective. In Schmitt´s thought, this distinction is the fundamental reason for the definition of the political. (...)
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  10. Embriones supernumerarios en las técnicas de reproducció humana asisitida. ¿Qué hacer con ellos? Análisis jurídico y ético de las opciones legales en España.Oscar Vergara - 2015 - Revista Derecho Genética Humana 43:59 - 81.
    La FIV puede llevar aparejada la acumulación de embriones humanos excedentes. Aunque la ley prevé varios posibles destinos, las clínicas de reproducción asistida, que con frecuencia han de decidir qué hacer con ellos, buscan criterios para hacerlo de la forma más razonable posible. Este trabajo pretende aportar razones jurídicas y éticas que ayuden a esa decisión.
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  11. Sistema jurídico, represeión y derechos humanos en la España contemporánea.Oscar Vergara - 2012 - Boletín Mexicano de Derecho Comparado (134):655 - 687.
    Según la teoría contemporánea, un sistema jurídico existe cuando es eficaz en general. Así, identificar las normas jurídicas válidas en tal sistema sólo requiere cumplir con los requisitos establecidos en su correspondiente regla de reconocimiento.**** De modo que ni en la cuestión de la existencia del sistema ni en la de la identificación de sus normas tiene que ver la de la moralidad del derecho. Esto se pone en cuestión en este trabajo a través del análisis del derecho de la (...)
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  12. Los archivos de la represión en España. Régimen de acceso y alcance de la libertad de producción científica.Oscar Vergara - 2012 - Revista Do CAAP (2):143 - 165.
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  13. Could Present Laws Legitimately Bind Future Generations? A Normative Analysis of the Jeffersonian Model.Shai Agmon - 2016 - Intergenerational Justice Review 9 (2).
    Thomas Jefferson’s famous proposal; whereby a state’s constitution should be re-enacted every 19 years by a majority vote; purports to solve the intergenerational problem caused by perpetual constitutions: namely that laws which were enacted by people who are already dead bind living citizens without their consent. I argue that the model fails to fulfil its own normative consent-based aspirations. This is because it produces two groups of people who will end up living under laws to which they did not give (...)
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  14. Conservadurismo y dogmática constitucional en Japón.Montserrat Crespin Perales - 2018 - Boletín de la paz y los Conflictos en Asia-Pacífico 9 (9):2-6.
    Conservadurismo y dogmática constitucional en Japón. Conservatism and the dogmatic part of constitution in Japan.
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  15. The Return of the Sacred to Politics as a Constitutional Law The Case of the Shari'atization of Politics in Islamic Civilization.Bassam Tibi - 2008 - Theoria: A Journal of Social and Political Theory 55 (115):91-119.
    Modernity believed that processes of secularization and rationalization are universally applicable. What is taking place in the 21st century, however, suggests that the reverse, a process of de-secularization, is becoming the hallmark of the present age. In the case of Islamic civilization, in which law is shari'a, the challenge to secularization takes the form of a process of shari'atization. This is not the traditional or inherited shari'a, restricted to civil matters and to a penal code, but an invented shari'a, one (...)
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  16. Book ReviewsRobert Justin Lipkin,. Constitutional Revolutions: Pragmatism and the Role of Judicial Review in American Constitutionalism.Durham, N.C.: Duke University Press, 2000. Pp. 366. $49.95. [REVIEW]Stephen Gardbaum - 2002 - Ethics 112 (4):838-841.
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  17. Anti-Liberalism and the Liberal Legacy in Postwar European Constitutionalism.Paolo Pombeni - 2008 - European Journal of Political Theory 7 (1):31-44.
    Was liberalism really an outdated ideology in post-1945 European political systems, as claimed by some scholars? The great success of socialism on one side and various forms of Christian Democracy on the other could make that claim appear reasonable. In fact a closer view shows how postwar constitutions in some countries (Italy, France and Germany) presented once again fundamental liberal values, reformulated in different words. One of the roots of that difference is the gap between the Anglo-Saxon approach to liberalism, (...)
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  18. Morality, Identity and “Constitutional Patriotism”.Frank I. Michelman - 2001 - Ratio Juris 14 (3):253-271.
    In a modern, plural society, there can be no settled agreement on the concrete legal content of a country's constitution. The idea of the constitution is nonetheless pivotal in contemporary, liberal‐minded theories of political justification, such as the ones advanced by Jürgen Habermas and John Rawls. Justification in these theories depends finally on “constitutional patriotism,” a consciously shared sentiment arising from an ethical assessment of their country by the country's people, according to which the country credibly pursues a certain regulative (...)
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  19. Constitutional Enactment. [REVIEW]Jeremy Elkins - 2005 - Political Theory 33 (2):280-297.
  20. Review Essay: Dance of the Seven Constitutional Veils: Constitutional Design as Political Choice and Craft: Mechanisms of Democracy: Institutional Design Writ Small, by Adrian Vermeule. Oxford, UK: Oxford University Press, 2007. 272 Pp. $50.00 . Law and the Limits of Reason, by Adrian Vermeule. Oxford, UK: Oxford University Press, 2008. 224 Pp. $49.95.Elizabeth Beaumont - 2010 - Political Theory 38 (2):282-290.
  21. Legal Conventionalism in the U.S. Constitutional Law of Privacy*: Mark Tushnet.Mark Tushnet - 2000 - Social Philosophy and Policy 17 (2):141-164.
    Drawing on themes important in moral and political philosophy, much of the scholarship on the constitutional law of privacy in the United States distinguishes between privacy understood as a person's control over information and privacy understood as a person's ability to make autonomous decisions. For example, Katz v. United States established the framework for analyzing whether police activity constituted a “search” subject to the Fourth Amendment's requirement that the police either obtain a warrant before conducting a search or otherwise act (...)
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  22. The Constitution in the Supreme Court: The First Hundred Years 1789-1888. [REVIEW]J. P. Dougherty - 1986 - Review of Metaphysics 39 (4):760-761.
    For anyone who teaches the philosophy of law this is an indispensible volume. Currie's intent is to provide a critical history of the Court's constitutional work for the first hundred years. In writing that history he displays the multiple methods of constitutional analysis and the techniques of opinion writing employed under seven Supreme Court justices. Not surprisingly, he concludes that judicial performance is not uniform. Currie makes no attempt to hide the vantage point from which he is writing. He assumes (...)
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  23. The Protestant Empire and the Old Reich. The Discussion on the Kaiser’s Religious Denomination in Politics, Communications and Constitutional Law. [REVIEW]Konrad Fuchs - 1979 - Philosophy and History 12 (1):78-79.
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  24. The Role of International Law in US Constitutional Law—A Question That Might Be Posed by John Courtney Murray: Is It Really Law?S. J. Robert J. Araujo - 2007 - Journal of Catholic Social Thought 4 (1):35-58.
  25. Catholicism and Constitutional Law: More Than Privacy In the Penumbras.Bill Piatt - 2010 - Journal of Catholic Social Thought 7 (2):337-352.
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  26. Philosophical Questions on Amending The United States Constitution.Christopher B. Gray - 1991 - Social Philosophy Today 5:79-104.
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  27. Considérations Critiques Sur la Constitution Et les Droits Dans la Culture Juridique Italienne Contemporaine.Agostino Carrino - 2016 - International Journal for the Semiotics of Law - Revue Internationale de Sémiotique Juridique 29 (4):805-822.
    In the following paper is put in question the present-day dominant Italian ideology of the so called ‘new constitutionalism’, which considers human rights as an open-texture catalogue of claims which only the Constitutional Courts are entitled to interpret and implement. This ideology is considered as a tool for overcoming the traditional liberal rule of law in favor a of more and more developed rule of the courts.
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  28. Constitutional Fidelity and Extra-Legal Discretion: Justifying Executive Prerogative and Disobedient Disclosure.Michael Allen - 2016 - Law and Philosophy 35 (6):595-614.
    In this article, I defend the justifiability of both concealed uses of executive prerogative as consistent with the end of self-preservation for which government is constituted by the people and its disobedient disclosure as consistent with the rational interest of the citizens of the constitutional state in non-subordination. Indeed, I argue both prerogative and disclosure are justifiable, despite the latter clearly operating at cross-purposes with the former. I also contend that disobedient disclosure aligns more closely with the justificatory conditions of (...)
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  29. The Contemporary Issues and Supreme Court.Kiyoung Kim - 2015 - Chosun Law Institute.
    Once again the decision and court opinion are an element within the general understanding of law at least in the common law countries. A lawyerly way has implications in shaping the pattern of public administration, but in differing extent of public attraction or normative impact. -/- First, while the Constitution of United States had brought a popular democracy and Constitution-based structure of government, the Ancient Regime had been overhauled in new land. The “nobility” as a basis of government was dispelled, (...)
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  30. Human Rights: Are They Just a Tweak for the Policy Makers or Administrators?Kiyoung Kim - 2014 - European Academic Research 2 (6):7760-7783.
    The human rights often are cited as an ultimate goal for the discipline of social science. It guides the UN in the pursuit of its organizational mission, and the civil democratic government generally endorses this paradigm of state rule as supreme. Nonetheless, it seems a mishap if the human rights are thought to be valued only in the courtroom or police office. They are the kind of ubiquitous concept that we could share and must share, who would be the scientists (...)
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  31. Not So Novus an Ordo.Jacob T. Levy - 2009 - Political Theory 37 (2):191-217.
    Social contract theory imagines political societies as resting on a fundamental agreement, adopted at a discrete moment in hypothetical time, that binds individual persons together into a polity and sets fundamental rules regarding that polity's structure and powers. Written constitutions, adopted at real moments in historical time, dictating governmental structures, bounding governmental powers, and entrenching individual rights, look temptingly like social contracts reified. Yet something essential is lost in this slippage between social contract theory and the practice of constitutionalism. Contractarian (...)
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  32. The Language of Liberal Constitutionalism.Howard Schweber - 2007 - Cambridge University Press.
    This book explores two basic questions regarding constitutional theory. First, in view of a commitment to democratic self-rule and widespread disagreement on questions of value, how is the creation of a legitimate constitutional regime possible? Second, what must be true about a constitution if the regime that it supports is to retain its claim to legitimacy? Howard Schweber shows that the answers to these questions appear in a theory of constitutional language that combines democratic theory with constitutional philosophy. The creation (...)
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  33. Roshan de Silva Wijeyeratne: Nation, Constitutionalism and Buddhism in Sri Lanka: Routledge, Abingdon and New York, 2014.Fabio Rambelli - 2015 - International Journal for the Semiotics of Law - Revue Internationale de Sémiotique Juridique 28 (4):867-869.
    In recent times, Sri Lanka has been ravaged for almost 30 years by a civil war opposing its Tamil minority, based on the northeastern regions of the island, to its Sinhalese majority—a war that caused between 50,000 and 100,000 deaths and countless casualties. In the media, the war was presented as a conflict opposing two different cultures and religions: Tamil Hinduists versus Sinhala Buddhists. Indeed, Buddhist organizations were supportive of the war effort, in an increasingly radicalized rejection of Tamil requests (...)
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  34. Decentralization in Romania: A Constant Failed Reform Under Scrutiny From the Constitutional Limits Perspective.Radu Carp & Andra Karla Sienerth - 2015 - Jurisprudencija: Mokslo darbu žurnalas 21 (4):1208.
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  35. The Legal Consequences Brought About by the Constitutional Court’s Statement That a Law or Other Legal Act Is in Conflict with the Constitution.Vytautas Sinkevičius - 2015 - Jurisprudencija: Mokslo darbu žurnalas 21 (4):939.
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  36. Constitutional Personae: Heroes, Soldiers, Minimalists, and Mutes.Cass R. Sunstein - 2015 - Oxford University Press USA.
    Since America's founding, the U.S. Supreme Court had issued a vast number of decisions on a staggeringly wide variety of subjects. And hundreds of judges have occupied the bench. Yet as Cass R. Sunstein, the eminent legal scholar and bestselling co-author of Nudge, points out, almost every one of the Justices fits into a very small number of types regardless of ideology: the hero, the soldier, the minimalist, and the mute. Heroes are willing to invoke the Constitution to invalidate state (...)
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  37. A Theory of Constitutional Rights.Robert Alexy - 2002 - Oxford University Press UK.
    This book analyses the general structure of constitutional rights reasoning under the German Basic Law. It deals with a wide range of problems common to all systems of constitutional rights review. In an extended introduction the translator argues for its applicability to the British Constitution, with particular reference to the Human Rights Act 1998.
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  38. Reading the Constitution: An Entanglement and Still Arguable Question.Cecilia Tohaneanu - 2010 - Romanian Review of Political Sciences and International Relations (1).
    Analyzing the constitutionality of a law is a process of constitutional interpretation which does not limit itself to comparing two texts in order to see whether they are concordant or not. The nature of constitutional interpretation is the subject of this article, a subject that is dealt with from the perspective of the dispute between originalism and non-originalism (interpretivism) prevalent within the contemporary philosophy of law, especially the American one. The article offers a synthetic view on some of the most (...)
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  39. The Ideals of Law: Judging and the Constitution.Jana Mohr Lone - 1996 - Dissertation, University of Washington
    The United States Constitution embodies both the real and the ideal. It is a concrete written text that uses particular words, has a history, and possesses certain limits; it is also a statement of the aspirations and dreams of a society. This dual identity requires that the Constitution be understood both as written positive law, and as an expression of a national vision and set of ideals. ;I argue for a conceptual theory of law that is positivistic in the sense (...)
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  40. A Reply To Critics Of Constitutional Goods.Alan Brudner - 2009 - Canadian Journal of Law and Jurisprudence 22 (2):237-266.
    In this article, the author replies to critiques of his book, Constitutional Goods by Professors Trevor Allan, Clare Chambers, John Charvet, Philip Cook, Thomas Poole, and Lorenzo Zucca. These critiques were originally presented at a symposium held in May, 2008 at the London School of Economics and Political Science and were later published together in Vol. XXII Canadian Journal of Law and Jurisprudence.
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  41. Pragmatism, Constitutional Interpretation, and the Problem of Constitutional Change.Bernard Jackson - 2003 - Dissertation, The University of Iowa
    In Home Building & Loan Assn. v. Blaisdell, the Supreme Court upheld the constitutionality of the Minnesota Mortgage Moratorium Act. Under the terms of the Act---one of the many pieces of moratory legislation enacted due to the Great Depression---mortgagors who found themselves unable to make their payments could turn to the state courts for an alteration of their payment schedule. It is clear that if there ever was a state of affairs in which one could justify the imposition of debtor (...)
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  42. Constitutional Justice a Liberal Theory of the Rule of Law.T. R. S. Allan - 2001 - Oxford University Press UK.
    This volume examines the concept of the rule of law, arguing that the principles it identifies provide the foundations of a liberal democratic legal order. It explains the connections between a range of matters fundamental to the relationship between citizen and state, including freedom of speech, civil disobedience, procedural fairness, and administrative justice.
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  43. The American Constitution and the Debate Over Originalism.Dennis J. Goldford - 2005
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  44. A Fossilised Constitution?VirgÍlio Afonso Da Silva - 2004 - Ratio Juris 17 (4):454-473.
    . The purpose of this paper is to analyse the limits of constitutional reform. Some constitutions, for example, the German , the Italian , the Portuguese , the French , and the Brazilian , contain an “essential core” of rights, which is usually understood as being immune to change. The initial focus in the paper is on the discussion on whether and to what extent these “essential cores” are indeed immune to change. A second focus is on Ross's paradox. Here (...)
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  45. The Concept of Human Dignity in German and Kenyan Constitutional Law.Rainer Ebert & Reginald M. J. Oduor - 2012 - Thought and Practice: A Journal of the Philosophical Association of Kenya 4 (1):43-73.
    This paper is a historical, legal and philosophical analysis of the concept of human dignity in German and Kenyan constitutional law. We base our analysis on decisions of the Federal Constitutional Court of Germany, in particular its take on life imprisonment and its 2006 decision concerning the shooting of hijacked airplanes, and on a close reading of the Constitution of Kenya. We also present a dialogue between us in which we offer some critical remarks on the concept of human dignity (...)
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  46. Constitutional Rigidity and the Default Rule.Sebastián Linares Lejarraga - 2014 - Ratio Juris 27 (4):540-549.
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  47. The Intergenerational Case for Constitutional Rigidity.Axel Gosseries - 2014 - Ratio Juris 27 (4):528-539.
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  48. Participation, Deliberation, and Constitutional Rigidity.Iñigo González Ricoy - 2014 - Ratio Juris 27 (4):521-527.
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  49. Can Economics Justify the Constitutional Guarantee of Freedom of Expression?Ian Lee - 2008 - Canadian Journal of Law and Jurisprudence 21 (2):355-397.
    The purpose of this article is to explore the resources available within the economic analysis of law for rationalizing the constitutional right to freedom of expression. I have sought to falsify the hypothesis that economics is incapable of supplying a rationale for the constitutional guarantee of freedom of expression. I have argued that, from an economic perspective, the guarantee may be understood as a device for the facilitation of political competition and the mitigation of the agency costs of government. Nevertheless, (...)
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  50. Constitutional Theory and The Quebec Secession Reference.Sujit Choudhry & Robert Howse - 2000 - Canadian Journal of Law and Jurisprudence 13 (2):143-169.
    The judgment of the Supreme Court of Canada in the Quebec Secession Reference has produced a torrent of public commentary. Given the fundamental issues about the relationship between law and politics raised by the judgment, what is remarkable is that that commentary has remained almost entirely in a pragmatic perspective, which asks how positive politics entered into the motivations and justifications of the Court, and looks at the results in terms of their political consequences, without deep or sustained reflection on (...)
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