Coasean Bargaining over the Structural Constitution

75 Pages Posted: 9 Mar 2014 Last revised: 25 Apr 2014

Aziz Z. Huq

University of Chicago - Law School

Date Written: April 2014

Abstract

The Constitution allocates entitlements to individuals and also institutions such as states and branches. It is familiar fare that individuals’ entitlements are routinely deployed not only as shields against unconstitutional action, but also as bargaining chips when negotiating with the state. By contrast, the possibility that branches and states could bargain over structural entitlements has largely escaped scholarly or judicial attention. Yet institutional negotiation over federalism and separation-of-powers interests is both endemic and unavoidable. To ascertain when such negotiation should be allowed, this Article develops a general theory of negotiated structural arrangements by leveraging doctrinal, economic and political theory insights. Negotiated structural outcomes, the Article concludes, should be deemed constitutional absent a clear demonstration of negative externalities or paternalism-warranting ‘internalities.’

Keywords: Separation of powers; economic analysis of public law

Suggested Citation

Huq, Aziz Z., Coasean Bargaining over the Structural Constitution (April 2014). Columbia Law Review, Vol. 114, 2014; U of Chicago, Public Law Working Paper No. 471. Available at SSRN: https://ssrn.com/abstract=2406093

Aziz Z. Huq (Contact Author)

University of Chicago - Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States

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