Craig (2017) Formal and Substantive Conceptions of the Rule of Law
Craig, P. (2017). Formal and substantive conceptions of the rule of law: an analytical framework. In Bellamy, R. (ed.)The Rule of Law and the Separation of Powers (pp. 95-115). Routledge.
Abstract:
There is a voluminous literature on the rule of law which examines the concept from almost every conceivable perspective. The analysis which follows makes no pretence at being a complete survey of these differing approaches. It does however attempt to address the subject in a way that is both important for public lawyers, and of broader significance outside of any particular legal system.
Criddle and Fox-Decent (2012). Human Rights, Emergencies, and the Rule of Law
Criddle, E. J., & Fox-Decent, E. (2012). Human rights, emergencies, and the rule of law. Hum. Rts. Q., 34, 39.
Abstract:
This article illuminates the normative basis for international law's regulation of public emergencies by arguing that human rights are best conceived as norms arising from a fiduciary relationship between states (or state-like actors) and persons subject to their power. States bear a fiduciary duty to guarantee subjects' secure and equal freedom, a duty that flows from their institutional assumption of sovereign powers. The fiduciary theory disarms Carl Schmitt's critique of constitutionalism by explaining how emergency powers can be reconciled with the rule of law.
Eggertson (1990). Economic Behavior and Institutions
Eggertsson, T. (1990). Economic behavior and institutions: Principles of Neoinstitutional Economics. Cambridge University Press.
Abstract:
An important new research program has developed in economics that extends neoclassical economic theory in order to examine the effects of institutions on economic behavior. The body of work emerging from this new line of inquiry includes contributions from the various branches of economic theory, such as the economics of property rights, the theory of the firm, cliometrics and law and economics. This book is the first comprehensive survey of this research program, which the author terms "neoinstitutional economics." The author proposes a unified approach to this research, integrating the work of various contributors and emphasizing the common principles of inquiry that tie the work together. The theoretical discussion is accomplished by empirical studies dealing with a whole range of institutions and economic systems.
Elkin-Koren and Gal (2018). The Chilling Effect of Governance-by-Data on Data Markets
Elkin-Koren, N. and Gal, M., (2018). The Chilling Effect of Governance-by-Data on Data Markets. University of Chicago Law Review, Vol. 86, 2018.
Abstract:
Big data has become an important resource not only for commerce, but also for governance. Governance-by-data seeks to take advantage of the bulk of data collected by private firms, to make law enforcement more efficient. It can take many forms, including setting enforcement priorities, affecting methods of proof, and even changing the content of legal norms. For instance, car manufacturers can use real-time data on the driving habits of drivers, to learn how their cars respond to different driving patterns. If shared with the government, the same data can be used to enforce speeding limits or even to craft personalized speeding limits for each driver.
The sharing of data for the purpose of law enforcement, raises obvious concerns to civil liberties. Indeed, over the past two decades, scholars have focused on the risks arising from such data sharing for privacy and freedom. So far, however, the literature has generally overlooked the implications of such dual use of data for data markets.
In this Article we argue that governance-by-data may create chilling effects that could distort data collection and data-driven innovation. We challenge the assumption that incentives to collect data are given, and that firms will continue to collect data, notwithstanding governmental access to such data. We show that in some instances an inverse relationship exists between incentives for collecting data, and sharing it for the purpose of governance. Moreover, the incentives of data subjects to allow the collection of data by private entities might also change, thereby potentially affecting the efficiency of data-driven markets and subsequently, data-driven-innovation. As a result, data markets might not provide sufficient and adequate data to support digital-governance. This, in turn, might significantly affect welfare.
Elkin-Koren and Haber (2016). Governance by Proxy, Cyber Challenges to Civil Liberties
Elkin-Koren, N., & Haber, E. (2016). Governance by Proxy: Cyber Challenges to Civil Liberties. Brook. L. Rev., 82, 105.
Abstract:
Distributed networks created new challenges to governance. At the initial stages of the commercial Internet, its distributed nature shifted power from traditional institutions to end users, acting alone or in collaboration with others. This led to a governance crisis: how do governments ensure public safety, secure critical infrastructure, and safeguard national security in an era of open communication networks? To address such crisis, legislatures created a legal framework in which governmental agencies could lawfully obtain information from intermediaries. In practice, as Edward Snowden revealed in 2013, governmental agencies also operated beyond the scope of this legal framework, mainly through an informal collaboration with online intermediaries. Such public-private partnership (PPP) is executed in a regulatory twilight zone, which keeps this type of collaboration beyond the reach of legal oversight, and outside the reach of market powers that could have pushed against it. It therefore fails to provide sufficient checks and balances and could subsequently risk our civil liberties and freedom.
This Article scrutinizes the new type of governance-by-proxy and the legal twilight zone that facilitates it. It identifies legal gaps and offers insights on how to address them. It proceeds as follows: Part I introduces the governance crisis and describes the role of online intermediaries in the new governance model. Part II describes the legal twilight zone in which informal governance by intermediaries takes place. It compares the legal framework for PPP prior to the information era with the legal regime that facilitated the rise of PRISM. Part III examines the constitutionality and legality of such PPPs. Part IV examines potential social and legal solutions to the governance crisis that also secure fundamental rights and liberties. The last Part concludes the discussion and calls for restructuring the legal regime that governs PPPs.
Elkin-Koren and Salzberger (2004). Law, Economics and Cyberspace, The Effects of Cyberspace on the Economic Analysis of Law
Ferejohn and Pasquino (2004). The Law of the Exception, A Typology of Emergency Powers
Ferejohn, John, and Pasquale Pasquino. "The law of the exception: A typology of emergency powers." International Journal of Constitutional Law 2, no. 2 (2004): 210-239.
Link to paper in International Journal of Constitutional Law: The law of the exception: A typology of emergency powers
Grimm (2014). Levels of the Rule of Law on the Possibility of Exporting a Western Achievement
Grimm, D. (2014, April). Levels of the Rule of Law–On the Possibility of Exporting a Western Achievement. In Constitutionalism and Good Governance (pp. 141-152). Nomos Verlagsgesellschaft mbH & Co. KG.
Gross and Ni Aolain (2006). Law in Times of Crisis, Emergency Powers in Theory and Practice
Gross, Oren, and Fionnuala Ní Aoláin. Law in times of crisis: emergency powers in theory and practice. Vol. 46. Cambridge University Press, 2006.
https://www.cambridge.org/core/books/law-in-times-of-crisis/974A70D71A5F4599717675E87CA935DC
Gross (2002). Chaos and Rules, Should Responses to Violent Crises Always Be Constitutional
Gross, Oren. "Chaos and rules: Should responses to violent crises always be constitutional." Yale LJ 112 (2002): 1011.
Chaos and Rules: Should Responses to Violent Crises Always Be Constitutional?