New York University Public Law and Legal Theory Working Papers

Document Type

Article

Comments

Forthcoming, Florida State University Law Review (Vol 33, Issue 3, Spring 2006)

Abstract

There is a vast literature on default rules in the law of contract and commercial relations. The question explored here is whether “default rule thinking” can enlighten the theory or practice of constitutional law. The first part expresses skepticism. The very notion that public officials may change or override certain constitutional protections may seem simply incoherent as a view of constitutional law. The second part argues that despite reasons for skepticism, the idea must be pursued, because default rules are pervasive in constitutional law. This part provides a typology of constitutional default rules employed in judicial decisions, tracking roughly the categories and definitions of defaults commonly identified in the contracts literature. The final part provides a tangible example of how rigorous application of default rule thinking in the constitutional area can have normative payoff. Applying positive theory, the article explains how default rule thinking can be used to enhance the democratic pedigree of constitutional decisions.

Date of Authorship for this Version

April 2006