Chapter 9 examines the principle of the duty of care in the context of climate litigation. The authors explore how this principle has been invoked in a growing range of jurisdictions, in different ways, to hold governments and corporations accountable for their respective contributions to climate change. By analysing judicial decisions in prominent cases such as Urgenda and Milieudefensie in the Netherlands, Neubauer in Germany, and Notre Affaire à Tous in France, the authors explore the potential of the duty of care principle to compel more ambitious climate action in pending and future cases. The emerging best practice they identify suggests a growing willingness of courts to recognise a duty of care for governments and corporations towards citizens in relation to climate change.

How should a constitutional state – one that respects subjects’ basic rights – treat civil disobedients? This chapter presents and critically engages with some of the most prominent answers legal scholars, political theorists, and philosophers have given to this question. On what I call punitive approaches, which I present in section 1, civil disobedience is first and foremost an act of resistance that threatens the constitutional order, and thus a public wrong worthy of punishment. Theorists of civil disobedience have challenged this approach since the 1960s, especially by conceiving of civil disobedience as a kind of dissent, which liberal democratic societies ought to and can ‘make room’ for. Sections 2 and 3 examine these ‘constitutionalizing’ approaches, with section 2 focusing on the case for leniency, and section 3 on the case for broad accommodation. Section 4 examines the costs of constitutionalizing approaches and reclaims the understanding of civil disobedience as a kind of resistance, alongside its uncivil counterparts, that is sometimes justified and even necessary in constitutional democracies.

“Cost-benefit analysis” (CBA) denotes the class of qualitative or quantitative methodologies that evaluate governmental policy choices in light of overall well-being. CBA plays a major role in non-constitutional U.S. public law. Executive agencies are required by Presidential order to employ CBA; courts construe ambiguous statutory language as permitting or requiring CBA; and courts also frequently find that administrative agencies’ mistakes in applying CBA are “arbitrary and capricious” under the Administrative Procedure Act. By contrast, CBA plays virtually no role in US constitutional law. It is generally absent not only from constitutional rights doctrine, but also from separation-of-powers and federalism doctrines. If overall well-being indeed plays a significant ethical role in determining the ethical status of governmental choices – which is what would justify the centrality of CBA to non-constitutional U.S. public law – its absence from constitutional law is quite puzzling. This can’t be justified by the premise that constitutional rights “trump” overall well-being (since CBA is absent even from those various parts of constitutional law where no such trumps are in play); nor the Constitution’s text (since the actual practice of the Supreme Court is only loosely textualist); nor original meaning (since the Court’s doctrines, on many questions, are not originalist); nor democratic legitimacy (since the Court could accommodate democratic legitimacy via a deferential version of CBA).

This chapter argues that, in practice, a constitutionalized right to vote does not on its own provide a guarantee that the right to vote will be meaningful. The right to vote is both multidimensional and institutional, which suggests that that the subconstitutional components of the right make a far greater difference to the reality of voting than the bare fact that the right is constitutionalized. As a normative matter, however, constitutions should recognize the right to vote. A constitutionalized right to vote plays a crucial expressive function by promoting democratic values. However, the expressive function of constitutional rights can, paradoxically, undermine democracy by providing autocrats in competitive authoritarian regimes with democratic cover while they are undermining constitutional safeguards. That being said, the right to vote, even when heavily manipulated, may nonetheless exert some constraints on elected autocrats. For this reason, the claim that the right to vote ought to be constitutionalized is normatively justifiable.

This chapter explores the principal constitutional challenges to laws that regulate unhoused persons and public property. Municipal ordinances have been challenged on the grounds that they are unconstitutionally vague or overbroad, impose cruel and unusual punishments, violate the right to travel, or infringe the right to equality. This chapter discusses the successes and shortfalls of these challenges. Its concluding parts discuss how U.S. and Canadian courts have rejected a positive right to housing.

This chapter touches upon the very large topic of how individual rights interact with the police power. In what sense and to what degree do rights contravene state and local exercises of the police power? It is a shibboleth that regulatory power is constrained by rights. But this chapter interrogates these issues in more depth and detail, by discussing how rights claims are framed in connection with the police power and how the government’s assertions of power are circumscribed by particular doctrines and arguments in courts. Further, the chapter considers how the debate over the nature and content of so-called positive rights implicates the police power questions, questions concerning authority and content.

Young people are increasingly impacted by the effects of the climate crisis, which are causing significant mental health harms. They are aware that government policies and decision-making have furthered reliance on fossil fuels, even in the face of the known dangers of climate change. To protect their human rights and future well-being, young people are turning to courts to hold their governments accountable for protecting their rights to a life-sustaining climate. Some courts around the world are granting young people access to seek remedies, while in other places, including the United States, such access is still denied. While access to justice is vital, young people have yet to see courts use the best available climate science as the basis for defining and protecting their rights. This article explores the obstacles young people face today in seeking and obtaining legal remedies, identifies human rights that are implicated by the climate crisis, and discusses why access to courts is a crucial aspect of the quest for a legally binding, science-based legal remedy for climate change that protects the rights of young people.

This chapter explores the question of what it means for a lawmaking institution to speak and act in our name. We maintain that different institutions can do so in different ways; even identical laws may have different meanings and significance depending on their institutional source.

We challenge the commonly held assumption that the institutional source of a legal norm – be it the constitution, legislation, and so on – does not affect its nature. We argue that institutions are not merely vessels through which norms get public recognition. When different institutions use identically worded norms, say, “everyone is equally entitled to X,” they may nevertheless produce different norms and provide different goods. For instance, a constitutional protection of a basic right differs from a statutory right to the same right, not because the former is less likely to be changed but because a constitutional decision marks the right in question as one that makes no essential reference to the actual choice of the majority of the political community. We extend this argument to other institutional settings, especially the common law tradition of judge-made law. We further discuss the doctrinal implications of the argument, defending a new kind of remedy: institutional remedies.

The right to petition was the ‘cornerstone’ of all other liberties, petitioners frequently argued. In the UK the right to petition was based on precedent, conventions and popular constitutionalism and was not, as in polities established in revolutionary contexts, a codified constitutional right derived from the idea of popular sovereignty. The right to petition was a contested right formed through a continuous, dynamic struggle between petitioners and Parliament. The right to petition was open to all subjects, and not limited by class, gender, race, literary, property or the franchise. There was little restriction of the content, as opposed to the form, of petitions to Parliament, and the decreasing limitations on petitioning in relation to association and assembly, ensured it became the key mode in connecting, legitimating and underpinning other political activities. Finally, petitioners successfully pressed for a popular, open right to petition, but politicians were able to resist attempts to expand the right of petition into a right of presence or audience. The contest over the right to petition was one of the ways in which politicians sought to retain their discretion and uphold parliamentary sovereignty while acknowledging popular rights.

This chapter explores how proportionality analysis has been incorporated into the case law of the Chilean Constitutional Court and what role it has played in the review of bills that sought the introduction of transformative policies in the country. The analysis contrasts judicial reasoning in cases that are part of ordinary practice and in landmark rulings where important projects of the progressive agenda were at stake. We suggest that, while proportionality has been applied inconsistently in both ordinary and high-profile cases, in the latter, it becomes part of the different strategies that the Court uses to mediate political conflicts. Proportionality works here more as a rhetorical tool than as a method of judicial reasoning, and the outcomes of the cases seem to depend more on the political composition of the Court at the time of the decision, the strength of citizen demand for changes and the influence that interest groups exert on the Court.

The literature on America’s unwritten constitution is rigorous and compelling, but it tends to focus almost entirely on how the federal Constitution has evolved through informal processes. In this chapter, I argue that our understanding of America’s unwritten constitution would be improved if we broadened the inquiry to include state constitutions. Unlike the federal Constitution, where Article V’s near-impossible amendment rules force essentially all reforms into informal pathways, the states have designed amendment rules and facilitated political cultures that encourage frequent formal amendment of constitutional text. Consequently, to the extent that unwritten constitutional commitments exist in the states, they are not the product of necessity, and they may shed new light on how constitutional rules evolve. In this chapter, I show that in various significant areas, states have indeed fostered robust unwritten constitutions and that state constitutionalism is characterized by a complex, competitive, and highly contextual interaction between codified and unwritten constitutional commitments.

This chapter discusses legal-ethical challenges posed by the emergence of emotional artificial intelligence (AI) and its manipulative capabilities. The focus lies on the European legal framework and on the use of emotional AI for commercial business-to-consumer purposes, although some observations are also valid for the public sector, or in the context of political micro-targeting or fake news. On the basis of a literature review, the chapter addresses privacy and data protection concerns, challenges to individual autonomy and human dignity as overarching values. It also presents a number of responses, specifically those suggesting the introduction of new (constitutional) rights to mitigate the potential negative effects of such developments and it provides the foundation for a future research agenda in that direction.