Texas Law Review

Edited and published by the students at the University of Texas School of Law, the Texas Law Review is a leading publication of legal scholarship. Texas Law Review contains articles by professors, judges, and practitioners, in addition to reviews, essays, commentaries, and student notes.

Articles from Vol. 87, No. 7, June

A Constitution without Constitutionalism: Reflections on Iraq's Failed Constitutional Process
I. IntroductionTheoretical physicists hypothesize a "sum over histories," a concept having its roots in the Heisenberg Uncertainty Principle and the Schrödinger equation postulated in quantum mechanics.1 The idea is that there are universes parallel...
Ancillary Powers of Constitutional Courts
I. IntroductionObservers of the global judicialization of politics have noted the spread of constitutional courts around the world, which made their appearance in early twentieth-century Europe1 and became seemingly required practice thereafter in Asia,...
Constitutional Horticulture: Deliberation-Respecting Judicial Review
Engineering and architectural metaphors recur in discussions of constitutionalism by both political scientists and law professors. The dominant image is one of architects who design a constitution, which is then constructed or built according to the...
Constitutionalism before Constitutions: Burma's Struggle to Build a New Order
In the wake of the constitutional fiasco in Iraq, many have come to believe that constitutional processes should begin only after the essential wounds have been healed.1 If the wounds have not been healed, the constitutional regime will simply break...
Constitutional Workarounds
I. Setting the Stage: Examples of Constitutional WorkaroundsConsider these constitutional "problems," some hypothetical but based on actual events and some that really have arisen recently.A. Shortening the Presidential TermSuppose a President running...
Constitutions, Elections, and Election Law
I. IntroductionThe issue that concerns us is what constitutions should and should not say about elections and election law. Our core argument is that even if we limit matters to the form and function of elections, then constitutional directives about...
Designing a Constitution: Of Architects and Builders
This Article offers a prolegomenon to the basic problems of constitutional design rather than prescribes any particular values, institutional arrangements to secure those values, or means to obtain the best fit between a larger culture and a given political...
Making Presidential and Semi-Presidential Constitutions Work
I. IntroductionFor many years, comparative scholarship about forms of government in general, and presidentialism in particular, has been dominated by Juan Linz's analysis of the perils of presidentialism. As we know, Juan Linz made a forceful argument...
Malleable Constitutions: Reflections on State Constitutional Reform
I. IntroductionAmerican federalism has produced curious and potentially significant differences in provisions for changing a constitution. Article V of the U.S. Constitution provides for only two procedures for amendment, both of which are difficult,...
The Anatomy of a Conservative Court: Judicial Review in Japan
The Supreme Court of Japan is widely and justifiably considered the most conservative constitutional court in the world. Drawing on interviews conducted in Japan with a variety of judges, officials, and scholars - including seven current and former members...
The "Design Sciences" and Constitutional "Success"
We all know the rule of umbrellas - if you take your umbrella, it will not rain; if you leave it, it will.- Ralph Waldo Emerson (American philosopher)1Design can be art. Design can be aesthetics. Design is so simple, that's why it is so complicated.-...
The Second American Revolution in the Separation of Powers
The American Constitution creates three branches of government and ensures that there will be sufficiently great amounts of ideological diversity among these branches of government. Despite this regime ensuring external heterogeneity, the American system,...
The Strange Cases of Marbury and Lochner in the Constitutional Imagination
I. IntroductionThis Article tells the story of the genesis and spread of judicial review. It is a story that reveals the role that Marbury v. Madison1 and Lochner v. New York2 played in shaping judicial review around the globe. It is a story that reveals...
What, If Anything, Do We Know about Constitutional Design?/Foreword: "I Read the News Today, Oh Boy"[dagger]: The Increasing Centrality of Constitutional Design
Consider the lead sentence of a recent story in the New York Times on the aftermath of the rejection by the California electorate of a number of measures most political leaders deemed necessary to rescue the state from its present desperate economic...

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