Constitutional Law and Economics

This chapter addresses a new and fertile research program: constitutional law and economics.  Constitutional law and economics asks questions like, ‘What is the extent of the U.S. Congress’s power to regulate commerce?’; ‘How much legislative authority can be delegated to administrators?’; and ‘When should constitutional change happen through judicial updating rather than formal amendment?’ To address such questions, constitutional law and economics blends positive, normative, and interpretive analysis.  This chapter describes all three but emphasizes interpretation. After introducing these modes of analysis, we turn to constitutional law. Six processes make and sustain constitutions: bargaining, voting, delegating, entrenching, adjudicating, and enforcing. Economic theory illuminates these processes, and constitutional law reflects them. We showcase the potential of constitutional law and economics by applying it to concrete problems.

Institutionalist Approaches to the Study of Constitutional Law

A fair case can be made that the vast majority of research in public law takes an institutional approach and that most public law scholars are institutionalists.  With the exception of judicial biography, research in public law is almost always about whether some legal or institution matters.  We study the influence of different ways of administering environmental laws, the impact of different ways of constituting judicial panels, and how different judicial traditions influence how constitutional free speech protections are interpreted.  Moreover, almost every student of law and courts thinks some institutions matter.  Disputes in the field are often more often about the impact of particular features of a legal system rather than over whether any distinctive element of law and legal systems influence the functioning of a legal order.

Quantitative Approaches to the Study of Constitutional Drafting

This paper surveys and critically discusses the relatively new and rapidly growing subfield of quantitative scholarship on constitutions, with particular attention to the challenges involved in addressing the question of whether and in what ways formal constitutions actually matter in the real world.

Mixed Methods in Constitutional Law: A Question-Driven Approach

Recent decades have witnessed an explosion of interest in multimethod research. It is partly a by-product of the rise of inter-disciplinarity but it is also a result of intra-disciplinarydevelopments, such as the demise of methodological ‘paradigm wars’ and the rise of computational approaches. Sited at the edge of law and politics, with material and symbolic functions, constitutional law is particularly ripe for the use of mixed methods. This paper argues, however, that constitutional law should not adopt a mixed method fetish through which different quantitative, qualitative and doctrinal methods are always combined in stringent ways. Rather it advocates an open and reflexive approach that is research-question driven and seeks to advance the field through methodological pluralism. Nonetheless, any concurrent, sequential or fused use of different methods in constitutional law requires a re-thinking of disciplinary competences, research ethics and institutional organisation.