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UNCONSTITUTIONAL CONDITIONS QUESTIONS EVERYWHERE: THE IMPLICATIONS OF EXIT AND SORTING FOR CONSTITUTIONAL LAW AND THEORY

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ABSTRACT
Unconstitutional conditions questions are supposed to be hard and rare. This article
contends that, however hard, nearly every constitutional question can be converted into
an unconstitutional conditions question. One reason is that the frames of reference in
constitutional disputes are often arbitrary, and expanding the frame can turn a constitutional
burden into a package deal with discretionary benefits supplied by the very
same government. A related reason is more fundamental and inspirational: constitutional
claimants are almost always allowed to exit the relevant institution and enter
another. This possibility of sorting across multiple institutions generates unconstitutional
conditions questions by making nearly every government imposition at least
nominally optional. Moreover, exit and sorting dynamics operate in contexts far
beyond people physically migrating to new locations. The full implications of exit and
sorting have been neglected by constitutional theorists, who tend to assume a static
population within one political community or to focus on crude arguments about
“voting with your feet.” This article is an initial effort to check these tendencies, and
to move exit and sorting toward the center of constitutional law and theory.

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Informasi Detail

Judul Seri

Journal of Legal Analysis

No. Panggil

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Penerbit

Oxford : Oxford University Press on behalf of The John M. Olin Center for Law., 2013

Deskripsi Fisik

Spring 2013: Volume 5, Number 1 ~ Journal of Legal Analysis

Bahasa

English

ISBN/ISSN

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Klasifikasi

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Tipe Isi

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Tipe Media

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Tipe Pembawa

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Edisi

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Subjek

HUKUM

Info Detail Spesifik

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Pernyataan Tanggungjawab

agus

Versi lain/terkait

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