Vladimir Maizus
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.
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.
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.
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.
Ballesteros ,F. L. (2008), Corruption and development. Does the “rule of law” factor weigh more than we think?, 54 Pesos
Chesterman, S. (2008). An international rule of law?. The American Journal of Comparative Law, 56(2), 331-362.
Abstract:
The rule of law is almost universally supported at the national and international level. The extraordinary support for the rule of law in theory, however, is possible only because of widely divergent views of what it means in practice. Disparate national traditions posed few problems while operating in parallel, but efforts to promote the rule of law through international organizations have necessitated a reassessment of this pluralism. This article proposes a core definition of the rule of law as a political ideal and argues that its applicability to the international level will depend on that ideal being seen as a means rather than an end, as serving a function rather than defining a status. Such a vision of the rule of law more accurately reflects the development of the rule of law in national jurisdictions and appropriately highlights the political work that must be done if power is to be channeled through law.
https://academic-oup-com.ezproxy.haifa.ac.il/ajcl/article-abstract/56/2/331/2571496
Buchanan, J. and Bernnan, G. (1985), The reason of Rules: Constitutional Polity. New York: Cambridge University Press.
Backhaus, J. (1978). Constitutional guarantees and the distribution of power and wealth. Public Choice, 33(3), 45-63.
Abstract:
This paper sets out to provide an analysis of the process of interpreting the constitution, by which the constitutional norms are not only applied and adapted to changing circumstances but essentially changed in content. The analysis concentrates on a rather specific example, a norm which has a clearly demonstrable impact on different identifiable interests. The approach is, however, easily generalizable and may be applied to any constitutional norm specific enough to foster a clash of interests. The analysis undertaken is in contrast to the debate on constitutional issues cited earlier - clearly positive. No normative conclusions are arrived at nor desired, rather the analysis seeks to present strategic considerations concerning constitutional litigation.
https://link-springer-com.ezproxy.haifa.ac.il/article/10.1007/BF00154683#enumeration
Aranson, P. H., Gellhorn, E., & Robinson, G. O. (1982). Theory of legislative Delegation. Cornell L. Rev., 68, 1.
Abstract:
The American Constitution plainly embodies a system of separation of powers. I Its first three
articles vest legislative, executive, and judicial powers in separate institutions; establish
distinctive organizational forms; assign particular responsibilities; and provide differing
procedures for choosing each branch's officials. The Constitution, however, does not clarify
how rigidly these powers must be separated. Each article's language appears exclusive,
yet the text includes terms susceptible to a contrary intepretation...
Annan, K. (1999). Two Concepts of Sovereignty. The Economist, 18(9), 1999.
Abstract:
As heads of state and government gather in New York for the annual session of the UN General Assembly Kofi Annan, the UN secretary-general, gives us his thoughts on international intervention in humanitarian crises, and the changes needed for the next century.
https://www.economist.com/international/1999/09/16/two-concepts-of-sovereignty