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Halfway Home captures the stories of the formerly incarcerated as they navigate the laws, rules, and regulations that impose limits on their post-prison life.

Featuring Tom Ginsburg, this article provides a comparative analysis of the constitutional law of presidential impeachment in the U.S. and other countries.

Written by ABF’s Christopher Schmidt, this book explores the history of the term ‘civil rights’ in the United States, from the Civil War to today.

This article with Shari Seidman Diamond summarizes the findings from a survey of legal professionals regarding the dramatic decline in civil and criminal jury trials.

In this article, Janice Nadler explores how people justify and rationalize their unethical behavior, even when it contradicts their moral values.

This article argues that public theology can play an important role in promoting ethical and moral considerations in global economic governance.

This edition details scholarship that underscores ABF’s cutting-edge work on the global legal system’s most pressing issues during the COVID-19 pandemic.

This article, authored by Stephen Daniels, develops a behavioral analysis of the social volatility of the recurrent populist movement in America.

This article examples the challenges that the contemporary political economy of rental housing poses for new efforts to regulate tenant screening using antidiscrimination law.

This article, with Tom Ginsburg, examines the use of emergency powers by executives in response to the COVID-19 pandemic.

  • Articles

The Bound Executive: Emergency Powers During the Pandemic

Tom Ginsburg and Mila Versteeg
Making and Implementing Law
June 2021

From the International Journal of Constitutional Law:

Emergency governance, we are often told, is executive governance. Only the executive has the information, decisiveness, and speed to respond to crises, and so the executive is not capable of being effectively constrained by other branches. Ordinary checks and balances, then, are believed to effectively disappear during a crisis. Referring to the classic theorist of emergency rule, conventional accounts describe crisis governance as “Schmittian” and “post-Madisonian,” characterized by an unbound executive that faces few, if any, legal constraints. This article interrogates these propositions using evidence from how countries responded to the 2020 global pandemic during the critical first few months. It presents data from an original and global survey of over one hundred countries to evaluate the nature of emergency powers during the pandemic. This article finds that, contrary to the conventional wisdom, courts, legislatures, and subnational governments have played important roles in constraining national executives. Courts have insisted on procedural integrity of invocations of emergency, engaged in substantive review of rights restrictions, and in some cases demanded that government take affirmative steps to combat the COVID-19 virus and its effects. Legislatures have played a role in providing oversight and, in many cases, in producing new legislation that responds to the current crisis. Subnational governments, too, have pushed back against central authorities, engaging in valuable checks and balances that shaped the response. Taken together, these findings suggest that, during COVID, emergency governance has been closer to the Madisonian ideal of strong checks and balances than to Schmittian accounts of an unbound executive. This article considers the implications of these findings for theories of emergency governance, arguing that the conventional theories are based on one particular type of crisis—a national security crisis—and therefore their insights may be ill-suited to other kinds of emergencies, such as a pandemic.