¹ Libertarianism is more prevalent in the United States, while it is rarely even mentioned in political discourse in Europe.Google Scholar

² See generally Peck, Jamie, Remaking Laissez-Faire, 32 Progress Hum. Geography 3 (2008); Ben Jackson, At the Origins of Neoliberalism: The Free Economy and the Strong State, 53 Hist. J. 53 129 (2010).Google Scholar

³ Jamie Peck, Constructions of Neoliberal Reason 51 (2010).Google Scholar

⁴ See 5 Friedrich A. von Hayek, Liberalismus, in Grundsätze einer liberalen Gesellschaftsordnung: Aufsätze zur Politischen Philosophie und Theorie 88–119 (Viktor Vanberg ed., 2002) [hereinafter von Hayek, Liberalismus].Google Scholar

⁵ Friedrich A. von Hayek, The Road to Serfdom 18 (1944) [hereinafter von Hayek, The Road to Serfdom]; Buchanan, James M. & Musgrave, Richard A., Public Finance and Public Choice: Two Contrasting Visions of the State 83 (1999).Google Scholar

⁶ Franz Böhm, Walter Eucken & Hans Grossmann-Doerth, The Ordo Manifesto of 1936, in Germany's Social Market Economy: Origins and Evolution 15–16 (Alan Peacock & Joachim Willgerodt eds., 1989).Google Scholar

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⁸ Id. at 23.Google Scholar

⁹ Id. Google Scholar

¹⁰ Id. Google Scholar

¹¹ Franz Böhm, Rule of Law in a Market Economy, in Germany's Social Market Economy: Origins and Evolution, supra note 6, at 57 [hereinafter Böhm, Rule of Law in a Market Economy].Google Scholar

¹² Franz Böhm, Das Problem der privaten Macht: Ein Beitrag zur Monopolfrage, in Grundtexte zur Freiburger Tradition der Ordnungsökonomik 49–67 (Nils Goldschmidt & Michael Wohlgemuth eds., 2008).Google Scholar

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¹⁴ Id. Google Scholar

¹⁵ Id. at 49.Google Scholar

¹⁶ Id. Google Scholar

¹⁷ See 1 Friedrich A. von Hayek, Law, Legislation, Liberty: Rules and Order 94–144 (1973). A more encompassing exposition would also have to address the distinction between thesis and nomos that von Hayek discussed at length in Law, Legislation and Liberty. Nomos concerns the rules of conduct and is often equated with private law by von Hayek, while thesis is public law explicitly set by legislatures. In his diagnosis of the decline of the rule of law, the problem is clearly thesis and not nomos. Google Scholar

¹⁸ Friedrich A. von Hayek, The Constitution of Liberty 185 (1960) [hereinafter von Hayek, The Constitution].Google Scholar

¹⁹ Id. at 182.Google Scholar

²⁰ Id. at 202.Google Scholar

²¹ Id. at 203.Google Scholar

²² James Buchanan is a particularly interesting neoliberal thinker because of the unique combination of ingredients to his thought. He was trained as an economist at the University of Chicago but then went on to pursue an original research agenda that contributed to the establishment of public choice theory as well as constitutional economics. Both theories are key influences for some contemporary varieties of neoliberal thought. In the present context, his significance derives from his focus on public finance and his specific approach to reining in fiscally undisciplined states and governments.Google Scholar

²³ See Buchanan, James & Wagner, Richard, The Political Biases of Keynesian Economics, in Fiscal Responsibility in Constitutional Democracy 79–100 (James Buchanan & Richard Wagner eds., 1978). Two prominent examples of countries, in which such amendments have been introduced, are Germany and Switzerland. The technical specifics differ in both cases. In Germany, the crucial parameter is net borrowing, which must remain below 0.35 per cent of GDP. In Switzerland, revenue and expenditure have to be kept in balance. Buchanan seems to have in mind the latter version: “With a balanced budget rule, any proposal for expenditure must be coupled with a proposal for taxation.” Id. at 89.Google Scholar

²⁴ James Buchanan, The Constitution of Economic Policy, 77 Am. Econ. Rev. 243 (1987); See Hayek, supra note 4, 88–119.Google Scholar

²⁵ See for example James Buchanan, Robert Tollison and Gordon Tullock, Towards a Theory of the Rent-Seeking Society (1980).Google Scholar

²⁶ James Buchanan, Liberty, Market and State: Political Economy in the 1980s, at 217 (1986) [hereinafter Buchanan, Liberty, Market, and State].Google Scholar

²⁷ As an aside, the formulation of a constitutional choice designates the dividing line between Buchanan and von Hayek on the link between politics and law. The legal evolutionist von Hayek would have held strong reservations against such “rationalist constructivism” and the critique vice versa can be found in James Buchanan, The Limits of Liberty: Between Anarchy and Leviathan 167 (1975).Google Scholar

²⁸ See generally Krasner, Stephen D., Sovereignty: Organized Hypocrisy (1999).Google Scholar

²⁹ Scharpf, Fritz W., Governing in Europe: Effective and Democratic? 121 (1999).Google Scholar

³⁰ See generally Biebricher, Thomas, Sovereignty, Norms, and Exception in Neoliberalism, 23 Qui Parle 77 (2014) (providing reflections on the paradox of sovereignty).Google Scholar

³¹ Giandomenico Majone, The Rise of the Regulatory State in Europe, 17 West Eur. Pol. 77 (1994).Google Scholar

³² See Follesdal, Andreas & Hix, Simon, Why There Is a Democratic Deficit in the EU: A Response to Majone and Moravcsik, 44 J. Common Mkt. Stud. 533, 542–44 (2006).Google Scholar

³³ Giandomenico Majone, From Regulatory State to a Democratic Default, 52 J. Common Mkt. Stud. 1216, 1222 (2014) [hereinafter Majone, Democratic Default].Google Scholar

³⁴ Geoffrey Brennan & James Buchanan, The Reason of Rules: Constitutional Political Economy 134 (1985).Google Scholar

³⁵ Id. at 31.Google Scholar

³⁶ Id. at 140.Google Scholar

³⁷ Buchanan, Liberty, Market, and State, supra note 26, at 56.Google Scholar

³⁸ See Buchanan, James, The Potential of Taxpayer Revolt in American Democracy, 59 Soc. Sci. Q. 691, 693–96 (1979).Google Scholar

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⁴² Stephen Gill, European Governance and New Constitutionalism Economic and Monetary Union and Alternatives to Disciplinary Neoliberalism in Europe, 3 New Pol. Econ. 5, 5 (1998).Google Scholar

⁴³ Id. at 8.Google Scholar

⁴⁴ Id. at 15–17.Google Scholar

⁴⁵ Dermot Hodson & Uwe Puetter, The European Union and the Economic Crisis, in European Union Politics 374 (Michelle Cini & Nieves Pérez-Solórzano Borragán eds., 4th ed. 2013).Google Scholar

⁴⁶ For concise explanations of the rationale and functioning of these reform measures, see Evaluating the Efficiency of the Two-Pack and Six-Pack, Council, European, http://www.consilium.europa.eu/en/policies/six-pack-two-pack-review/ (last visited Sept. 13, 2016).Google Scholar

⁴⁷ Michael Bauer & Stefan Becker, From the Front Line to the Back Stage: How the Financial Crisis Has Quietly Strengthened the European Commission, Public Money & Management, 34 Pub. Money & Mgmt. 161, 161–63 (2014).Google Scholar

⁴⁸ Jean-Claude Juncker: State of the Union 2016: Towards a better Europe: A Europe that protects, empowers and defends. http://europa.eu/rapid/press-release_SPEECH-16-3043_en.htm.Google Scholar

⁴⁹ To be precise, it is not entirely off the table because in cases of natural disasters or grave recessions exceptions to the BBA can be made.Google Scholar

⁵⁰ Majone, Democratic Default, supra note 33, at 1221–22.Google Scholar

⁵¹ See generally Brown, Wendy, American Nightmare: Neoliberalism, Neoconservatism, and De-Democratization, 34 Pol. Theory 690 (2006); see also Biebricher, supra note 30, at 100–03.Google Scholar

⁵² Id. at 695. More recently, Brown has expanded upon her diagnosis with a critique of some landmark Supreme Court rulings, especially the now infamous Citizens United case. She highlights the neoliberal logic of markets and capital underlying the ruling. Still, the neoliberalization of law she describes in the contemporary American context remains different from the kind of juridical neoliberalism in the European context. See Brown, Wendy, Undoing the Demos: Neoliberalism's Stealth Revolution 151–74 (2015).Google Scholar

⁵³ Brown, supra note 51, at 696.Google Scholar

⁵⁴ Brown, supra note 51, at 695.Google Scholar

⁵⁵ Mark Blyth, Austerity: The History of a Dangerous Idea 13 (2013).Google Scholar

⁵⁶ Mario Monti, Charlemagne: The Other Moral Hazard: Charlemagne, The Economist (September 29, 2012) http://www.economist.com/node/21563741.Google Scholar

⁵⁷ When the Portuguese Supreme Court ruled against the implementation of reforms demanded by the Troika, lawmakers responded with a constitutional reform.Google Scholar

⁵⁸ See Wilkinson, Michael, The Specter of Authoritarian Liberalism: Reflections on the Constitutional Crisis of the European Union, 14 German L.J. 527 (2013); Christian Joerges, Law and Politics in Europe's Crisis: On the History of the Impact of an Unfortunate Configuration, 21 Constellations 249 (2014).Google Scholar