Coasean Bargaining Over the Structural Constitution

Author: 
Aziz Huq

The Constitution allocates entitlements to individuals and also institutions such as states and branches. It is familiar fare that individuals’ entitlements are routinely deployed not only as shields against unconstitutional action, but also as bargaining chips when negotiating with the state. By contrast, the possibility that branches and states could bargain over structural entitlements has largely escaped scholarly or judicial attention. Yet institutional negotiation over federalism and separation-of-powers interests is both endemic and unavoidable. To ascertain when such negotiation should be allowed, this Article develops a general theory of negotiated structural arrangements by leveraging doctrinal, economic and political theory insights. Negotiated structural outcomes, the Article concludes, should be deemed constitutional absent a clear demonstration of negative externalities or paternalism-warranting ‘internalities.’