“The Coasian Constitution”

That is the title of our most recent work-in-progress in which we suggest replacing judicial review with some form of “constitutional arbitration.” We will present our work during the Sixth Annual Constitutional Law Colloquium sponsored by the Loyola School of Law in Chicago. Our panel is scheduled for this Friday, Nov. 5th, at 1:15 pm in Room 1102 of Loyola (25 E Pearson Street). Feel free to see us speak if you are in Chicago. Below the fold is an outline of our presentation:

I. Problem: judicial review in an “agonistic” model of democracy

A. Deliberative democracy vs. agonistic pluralism

  • Given our irreconcilable ideologies and power differentials, (some of) our political and constitutional controversies are not “soluble” through rational methods

B. Recent examples:

  • DOMA
  • Patriot Act
  • ACA

II. Solution: constitutional arbitration (“thought experiment”)

A. Constitutional arbitration (or “popular review”) instead of judicial review

  • What if the Congress were to insert a provision in X law [e.g. DOMA, ACA, etc.] requiring all constitutional challenges to X law be submitted to some form of constitutional arbitration?
  • Arbitration clauses are common in private contracts, so why not try them out in public legislation?

B. Random selection of arbitrator

  • The arbitrator would be a “constitutional arbitrator”
  • The constitutional arbitrator (or a panel of three arbitrators) could be selected randomly from a list of law professors …

C. Right of appeal

  • The result of the arbitration could be appealed directly to SCOTUS (cf. APA) …
  • SCOTUS could overrule the constitutional arbitrator, but this would require a 2/3rds vote …

III. Objections: logic, fairness, bias, and costs

A. Logical objection (the self-reference problem)

  • Is “constitutional arbitration” itself constitutional?

B. Due process objection

  • Is “constitutional arbitration” fair?
  • Solution: random selection + opportunity to be heard
  • Also, let’s require the arbitrators to write down their reasons (consistent with “deliberative democracy”)
  • Cf. the APA

C. Bias objection

  • Arbitrators are often biased; also, unlike Art. III judges, arbitrators lack tenure and salary guarantees.
  • Solution: random selection
  • Also, would constitutional arbitrators be any less biased than federal judges?

D. Costs

  • Who pays?
  • Solution: let’s expense this to the federal judiciary’s budget …

 “The Constitution Mural” by Faulkner

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