Document Type

Article

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Published in: DePaul Law Review, 2007

Abstract

Academic work extolling the merits of the "rule of law" both domestically and internationally abounds today, yet the meanings of the phrase itself seem to proliferate. Two of the most prominent contexts in which rule of law rhetoric appears are those of economic development and states of emergency. In the area of private law, dissemination of the rule of law across the globe and, in particular, among emerging market countries is often deemed a prerequisite for enhancing economic development, partly because it ensures that foreign investments will not be summarily expropriated and that contractual rights will not be frustrated by governmental interference. Much of public law scholarship has, in turn, examined whether and in what form the rule of law, which is often seen as a basic requirement for a liberal political order, can be retained during times of emergency.

While the economic development and state of emergency contexts for rule of law discussions appear quite distinct, they do converge in at least one situation, that of economic emergency. Paradigmatic cases of economic emergency include the Great Depression, the Argentine fiscal crisis of 2001, and the East Asian currency crisis of the late 1990s. Arguably more marginal instances might comprehend the economic consequences of Hurricane Katrina, the economic dimensions of a potential bird flu pandemic, or the threatened financial chaos of the Y2K computer crisis. Either the economic development or emergency-oriented approach to the rule of law could lead to the conclusion that none of these situations justify abrogation of core rule of law values - but this, of course, puts aside the question of which values do lie at the center of the rule of law.

This Article contends that, in the United States context, the rule of law should be conceived flexibly enough to permit governmental intervention that may temporarily disrupt the economic but not personal liberty or political participation rights of individuals during these situations of economic emergency. Without addressing whether and to what extent the government should interfere in the economic sphere, this Article argues that several justifications based in the democratic vision underlying our constitutional system warrant treating the suspension of economic rights differently from the suspension of rights such as those of habeas corpus or the vote.

Date of Authorship for this Version

November 2006

Keywords

Economic emergency, Rule of law

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