This chapter surveys the historical evidence on the role of institutions in economic growth and points out weaknesses in a number of stylized facts widely accepted in the growth literature. It shows that private-order institutions have not historically substituted for public-order ones in enabling markets to function; that parliaments representing wealth holders have not invariably been favorable for growth; and that the Glorious Revolution of 1688 in England did not mark the sudden emergence of either secure property rights or economic growth. Economic history has been used to support both the centrality and the irrelevance of secure property rights to growth, but the reason for this is conceptual vagueness. Secure property rights require much more careful analysis, distinguishing between rights of ownership, use, and transfer, and between generalized and particularized variants. Similar careful analysis would, we argue, clarify the growth effects of other institutions, including contract-enforcement mechanisms, guilds, communities, serfdom, and the family. Greater precision concerning institutional effects on growth can be achieved by developing sharper criteria of application for conventional institutional labels, endowing institutions with a scale of intensity or degree, and recognizing that the effects of each institution depend on its relationship with other components of the wider institutional system.

Institutions and Economic Growth in Historical Perspective

In this paper we study the long-term labor market implications of school resource equalization before Brown and school desegregation after Brown. For cohorts born in the South in the 1920s and 1930s, we find that racial disparities in measurable school characteristics had a substantial influence on black males' earnings and educational attainment measured in 1970, albeit one that was smaller in the later cohorts. When we examine the income of male workers in 1990, we find that southern-born blacks who finished their schooling just before effective desegregation occurred in the South fared poorly compared to southern-born blacks who followed behind them in school by just a few years.

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Evaluating the Role of Brown vs. Board of Education in School Equalization, Desegregation, and the Income of African Americans

In the debates about whether to take constitutionalism beyond the state, the European Union invariably looms large. One element, in particular, that invites scholars to grapple with the analogy between the European Union and global governance is the idea of legal pluralism. Just as the European legal order is based on competing claims of ultimate legal authority among the European Union and its Member States, so, too, the global legal order, to the extent we can speak of one, lacks a singular, uncontested hierarchy among its various parts. Scholars have accordingly begun to consider pluralism within the European Union as a model from which to glean more general principles that may be applicable to pluralism and constitutionalism elsewhere. If we can find constitutionalism within the pluralist system of the European Union, so the argument goes, perhaps we can find constitutionalism within the international legal system as well.This paper takes a fresh look at constitutionalism and pluralism by bringing heterarchy home. In so doing, it explores a comparison that has been uniformly overlooked in the scholarly literature. This chapter examines the similarities between the pluralism that lies at the core of European constitutionalism and aspects of pluralism in U.S. constitutional practice. With regard to these two systems, the chapter makes three claims. First, in both systems important questions of final legal authority remain essentially unsettled. Second, in both systems, this absence of hierarchy of legal authority does not lead to chaos, but constitutes a system of order. Third, the management of constitutional conflict and the resulting accommodation turn on what I claim are the three primary values of constitutionalism: voice, expertise, and rights. Reaching beyond these two systems, the comparative inquiry pursued here helps answer what may be the most pressing question for those who seek to understand global governance in the language of constitutionalism. The comparison reveals that constitutionalism does not depend on traditional hierarchy among systems or interpretive institutions. Instead, constitutionalism can be realized within a system of heterarchy. Constitutionalism stands for a project of governance in which actors endeavor to realize the primary values of voice, expertise, and rights. And it is these three values that the idea of constitutionalism, if taken seriously, aims to vindicate at the level of global governance as well.

https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID1148295_code256592.pdf?abstractid=1147769&mirid=1

Ruling the World?: Constitutional Heterarchy: The Centrality of Conflict in the European Union and the United States

This is Part 2 of a two-part paper which surveys the historical evidence on the role of institutions in economic growth. The paper provides a critical scrutiny of a number of stylized facts widely accepted in the growth literature. It shows that private-order institutions have not historically substituted for public-order ones in enabling markets to function; that parliaments representing wealth holders have not invariably been favourable for growth; and that the Glorious Revolution of 1688 did not mark the sudden emergence of either secure property rights or economic growth. Economic history has been used to support both the centrality and the irrelevance of secure property rights to growth, but the reason for this is conceptual vagueness. Secure property rights require much more careful analysis, distinguishing between rights of ownership, use and transfer, and between generalized and particularized variants. Similar careful analysis would, we argue, clarify the growth effects of other institutions, including contract-enforcement mechanisms, guilds, communities, serfdom, and the family. Greater precision concerning institutional effects on growth can be achieved by developing sharper criteria of application for conventional institutional labels, endowing institutions with a scale of intensity or degree, and recognizing that the effects of each institution depend on its relationship with other components of the wider institutional system. Part 2 of the paper examines how institutions are situated in wider institutional systems, explores alternative approaches to explaining institutions, and applies the arguments established in earlier sections to the institution of serfdom. It concludes by drawing the implications of both parts of the paper for institutions and economic growth in historical perspective.

https://www.econstor.eu/bitstream/10419/102126/1/cesifo_wp4862.pdf

Institutions and Economic Growth in Historical Perspective: Part 2

This Article explores what happens to longstanding remedies for past racial discrimination as conditions change It shows that Congress and the Supreme Court have responded quite differently to changed conditions when they evaluate such remedies Congress has generally opted to stay the course, while the Court has been more inclined to view change as cause to terminate a remedy The Article argues that these very different responses share a defining flaw, namely, they treat existing remedies as fixed until they are terminated As a result, remedies are either scrapped prematurely or left stagnant despite dramatically changed conditions The Article seeks to map out a better response to changed conditions than the all or nothing options that presently define the debate It argues that longstanding remedies should neither be terminated nor continued indefinitely, but instead should be adapted to better address changed circumstances Specifically, the Article calls for a shift in remedial focus away from the effects of past discrimination to the local institutions that must deal with those effects most directly It calls on courts, legislators and voters to adapt remedies so that they provide institutions of local governance with the skills and resources needed to operate fairly in an environment inexorably shaped by past discrimination

https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID1707484_code572410.pdf?abstractid=1692131&mirid=2

Engineering the Endgame

This Article explores what happens to longstanding remedies for past racial discrimination as conditions change It shows that Con gress and the Supreme Court have responded quite differently to changed conditions when they evaluate such remedies Congress has generally opted to stay the course, while the Court has been more inclined to view change as cause to terminate a remedy The Article argues that these very different responses share a defining flaw, namely, they treat existing remedies as fixed until they are terminated As a result, remedies are either scrapped prematurely or left stagnant despite dramatically changed conditions

/pdf/engineering-the-endgame-2lft0xmrxq.pdf

/pdf/what-was-wrong-with-the-record-1yc5kxdfcd.pdf

What Was Wrong with the Record

Congress voted last summer to reauthorize the expiring provisions of the Voting Rights Act. Among the reauthorized provisions is the Section 5 preclearance process, which requires "covered" jurisdictions to obtain federal approval before implementing changes to their voting laws. It is widely assumed that the reauthorization of Section 5 will survive constitutional scrutiny only if the record Congress amassed to support the statute documents pervasive unconstitutional conduct in covered jurisdictions for which preclearance offers a remedy. This paper takes issue with that assumption, arguing that precedent requiring such a record for new congressional legislation enforcing civil rights ought not apply when Congress renews an existing, operational statute such as Section 5. To require such a record would mean that only ineffective statutes are entitled to reauthorization. Instead, the inquiry should consider the quality of minority political participation in covered jurisdictions operating without the constraints imposed by the preclearance requirement. Judicial decisions construing the Section 2 of Voting Rights Act offer one lens through which to consider this prospect. While Section 2 differs from Section 5 in significant ways, the very complexity of the Section 2 inquiry renders judicial opinions addressing these claims a rich source of information detailing political participation in the defendant jurisdictions. This paper provides an overview of judicial findings from 331 Section 2 lawsuits decided since 1982, and compares how these findings differ between covered and non-covered jurisdictions.

/pdf/not-like-the-south-regional-variation-and-political-46obh7c8ri.pdf

Not Like the South? Regional Variation and Political Participation through the Lens of Section 2

This Essay relies on an analogy pressed in the dissenting opinion in Shelby County v. Holder to describe an increasingly prominent conception of federal anti-discrimination law. It is a conception that sees the existing regime to be a source of unjust enrichment to its beneficiaries, one that does not simply make victims of undeniable discrimination whole, but instead places a host of interested parties, victims included, in a decidedly better position than they would have been had the discrimination never occurred. Notably, this conception of federal anti-discrimination law does not deny the persistence of discrimination, including discrimination that is unconstitutional or otherwise invidious. The more pressing worry, however, is that the regime today does more harm than the discrimination it presently addresses.

/pdf/justice-ginsburg-s-umbrella-6085p2n72e.pdf

Ellen D. Katz

Papers

Engineering the Endgame

Engineering the Endgame

What Was Wrong with the Record

Not Like the South? Regional Variation and Political Participation through the Lens of Section 2

Justice Ginsburg's Umbrella