Globalization and the Future of Constitutional Rights

74 Pages Posted: 27 Mar 2007 Last revised: 2 Sep 2008

David S. Law

Washington University in Saint Louis - School of Law; The University of Hong Kong - Faculty of Law; Washington University in Saint Louis - Department of Political Science

Abstract

Globalization - the drastic reduction of barriers to trans-border movement and exchange - is a phenomenon of obvious practical significance that has received little attention from American constitutional scholars. To the extent that it has received such attention at all, that attention has been largely confined to a handful of conspicuous changes in judicial behavior, such as the growth of transnational judicial dialogue and the citation of foreign law in recent Supreme Court decisions. Yet the potential impact of globalization is not limited to its effect on the travel and citation habits of judges. On a larger scale, globalization entails intensifying international competition for investment capital and human talent that may have much greater implications for the worldwide development of constitutional law.

This paper aims to place globalization on the agenda of constitutional scholarship by proposing a provocative hypothesis about the impact of global investment and migration patterns on the extent to which countries uphold basic rights. One way in which countries can and do compete for financial capital and human talent is by offering bundles of rights and freedoms that are attractive to investors and elite workers. This paper argues that such competition has the potential to result in a race to the top in the areas of civil liberties and property rights. It draws upon scholarship and data from a range of disciplines - but most heavily political science and economics - to show that this race to the top hypothesis is both logically and empirically plausible.

The paper also employs the concept of a world market in human rights, in which states bid for elite workers by offering both pecuniary and non-pecuniary inducements that include more or less generous bundles of rights and freedoms. Countries that do not boast an attractive bundle of this kind must compensate by offering what this article calls a freedom premium, which amounts to a competitive disadvantage in the global market for human talent.

Keywords: globalization, constitutional law, constitutional rights, civil liberties, property rights, race to the top, migration, human capital, freedom premium, constitutional competition

Suggested Citation

Law, David S., Globalization and the Future of Constitutional Rights. 102 Northwestern University Law Review 1277 (2008); San Diego Legal Studies Paper No. 07-91. Available at SSRN: https://ssrn.com/abstract=975914

David S. Law (Contact Author)

Washington University in Saint Louis - School of Law ( email )

1 Brookings Drive
Campus Box 1120
St. Louis, MO 63130
United States
314-266-9698 (Phone)
314-935-5356 (Fax)

HOME PAGE: http://www.davidlaw.ca

The University of Hong Kong - Faculty of Law ( email )

Pokfulam Road
Hong Kong, Hong Kong
China

HOME PAGE: http://www.davidlaw.ca

Washington University in Saint Louis - Department of Political Science ( email )

One Brookings Drive
One Brookings Drive
St. Louis, MO 63130
United States

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