Open Access. Powered by Scholars. Published by Universities.®
Articles 1 - 29 of 29
Full-Text Articles in Law
Embracing Chance: Post-Modern Meditations On Punishment, Bernard E. Harcourt
Embracing Chance: Post-Modern Meditations On Punishment, Bernard E. Harcourt
Public Law and Legal Theory Working Papers
No abstract provided.
Reefer Madness: Broken Windows Policing And Misdemeanor Marijuana Arrests In New York, Bernard E. Harcourt, Jens Ludwig
Reefer Madness: Broken Windows Policing And Misdemeanor Marijuana Arrests In New York, Bernard E. Harcourt, Jens Ludwig
Public Law and Legal Theory Working Papers
No abstract provided.
Second-Order Perfectionsim, Cass R. Sunstein
Second-Order Perfectionsim, Cass R. Sunstein
Public Law and Legal Theory Working Papers
In constitutional law, first-order perfectionism represents an effort to cast the Constitution’s ideals in the best constructive light. Ronald Dworkin’s conception of law as “integrity” can be seen as a form of firstorder perfectionism. By contrast, second-order perfectionism attempts to set out an account of constitutional adjudication that is sensitive to the fallibility of federal judges. Originalism is best defended as a form of second-order perfectionism; the same can be said of Thayerism, captured in the view that judges should uphold statutes unless they are unquestionably violative of the Constitution. Minimalism, which calls for narrow, incompletely theorized judgments, is another …
The International Protection Of Cultural Property: Some Skeptical Observations, Eric A. Posner
The International Protection Of Cultural Property: Some Skeptical Observations, Eric A. Posner
Public Law and Legal Theory Working Papers
Cultural property is subject to two international legal regimes, one of which protects cultural property during wartime, and the other of which regulates the international trade in cultural property. Neither legal regime has been notably successful. Cultural property is often targeted and destroyed during wars, or given inadequate protection. And the international trade in cultural property flourishes because states have been unwilling to invest resources in controlling it. As a result, scholars and advocates argue that both legal regimes should be strengthened. Sanctions should be enhanced; states should be forced to devote greater resources to complying with treaties; treaty obligations …
Montreal Versus Kyoto: A Tale Of Two Protocols, Cass R. Sunstein
Montreal Versus Kyoto: A Tale Of Two Protocols, Cass R. Sunstein
Public Law and Legal Theory Working Papers
No abstract provided.
The Credible Executive, Eric A. Posner, Adrian Vermeule
The Credible Executive, Eric A. Posner, Adrian Vermeule
Public Law and Legal Theory Working Papers
Legal and constitutional theory has focused chiefly on the risk that voters and legislators will trust an ill-motivated executive. This paper addresses the risk that voters and legislators will fail to trust a well-motivated executive. Absent some credible signal of benign motivations, voters will be unable to distinguish good from bad executives and will thus withhold discretion that they would have preferred to grant, making all concerned worse off. We suggest several mechanisms with which a well-motivated executive can credibly signal his type, including independent commissions within the executive branch; bipartisanship in appointments to the executive branch, or more broadly …
Undue Process, Adam M. Samaha
Undue Process, Adam M. Samaha
Public Law and Legal Theory Working Papers
This Article explores the relationship of the United States Constitution to the costs of government decision-making. Constitutional law clearly can escalate these costs, as when the due process clauses are read to mandate additional procedure not otherwise favored by decisionmakers. This much is understood. But the Constitution and its doctrine sometimes put downward pressure on decision costs. We lack a systematic investigation of when this is, and should be, true. I make three general claims: (1) The entire Constitution tends to reduce decision costs insofar as it is a focal point for confining disputes, and empirical work suggests that the …
Of Snakes And Butterflies: A Reply, Cass R. Sunstein
Of Snakes And Butterflies: A Reply, Cass R. Sunstein
Public Law and Legal Theory Working Papers
This brief essay, a reply to a forthcoming essay by Radicals in Robes by Saikrishna Prakash in the Columbia Law Review, makes two points. The first is that the abstract idea of interpretation cannot support originalism or indeed any judgment about the competing (reasonable) approaches to the Constitution. Any such judgment must be defended on pragmatic grounds, which means that it must be attentive to consequences. The second point is that the consequentialist judgments that support minimalism also suggest that there are times and places in which minimalism is rightly abandoned. For example, broad rulings may well be justified when …
Clear Statement Principles And National Security: Hamdan And Beyond, Cass R. Sunstein
Clear Statement Principles And National Security: Hamdan And Beyond, Cass R. Sunstein
Public Law and Legal Theory Working Papers
In resolving conflicts between individual rights and national security, the Supreme Court has often said that Congress must unambiguously authorize presidential action; the Court has also attempted to ensure that defendants are not deprived of their liberty except pursuant to fair trials. These decisions, a form of liberty-promoting minimalism, reject claims of unilateral or exclusive presidential authority. The Court’s decision in Hamdan v. Rumsfeld reflects a distinctive clear statement principle, one that bans the President from convening a military commission, or otherwise departing from the standard adjudicative forms, unless Congress explicitly authorizes him to do so. The Court’s conclusion diverges …
Presidential Signing Statements And Executive Power, Eric A. Posner, Curtis A. Bradley
Presidential Signing Statements And Executive Power, Eric A. Posner, Curtis A. Bradley
Public Law and Legal Theory Working Papers
A recent debate about the Bush administration’s use of presidential signing statements has raised questions about their function, legality, and value. We argue that presidential signing statements are legal and that they provide a useful way for the president to disclose his views about the meaning and constitutionality of legislation. Although President Bush has challenged more statutory provisions in signing statements than prior administrations have, his signing statements are similar in many respects to the signing statements issued by prior presidents, such as President Clinton. In addition, basic tenets of positive political theory suggest that signing statements do not undermine …
The Temporal Dimension Of Voting Rights, Adam B. Cox
The Temporal Dimension Of Voting Rights, Adam B. Cox
Public Law and Legal Theory Working Papers
No abstract provided.
Chevron As A Voting Rule, Jacob Gersen, Adrian Vermeule
Chevron As A Voting Rule, Jacob Gersen, Adrian Vermeule
Public Law and Legal Theory Working Papers
No abstract provided.
Designing Redistricting Institutions, Adam B. Cox
Designing Redistricting Institutions, Adam B. Cox
Public Law and Legal Theory Working Papers
No abstract provided.
Temporary Legislation, Jacob Gersen
Temporary Legislation, Jacob Gersen
Public Law and Legal Theory Working Papers
No abstract provided.
Chevronizing Foreign Relations Law, Cass R. Sunstein, Eric A. Posner
Chevronizing Foreign Relations Law, Cass R. Sunstein, Eric A. Posner
Public Law and Legal Theory Working Papers
A number of judge-made doctrines attempt to promote international comity by reducing possible tensions between the United States and foreign sovereigns. For example, ambiguous statutes are usually interpreted to conform to international law, and statutes are usually not understood to apply outside of the nation’s territorial boundaries. The international comity doctrines are best understood as a product of a judicial judgment that in various settings, the costs of American deference to foreign interests are less than the benefits to American interests. Sometimes Congress balances these considerations and incorporates its judgment in a statute, but usually it does not. In such …
International Law And The Rise Of China, Eric A. Posner, John C. Yoo
International Law And The Rise Of China, Eric A. Posner, John C. Yoo
Public Law and Legal Theory Working Papers
No abstract provided.
The New International Law Scholarship, Eric A. Posner, Jack L. Goldsmith
The New International Law Scholarship, Eric A. Posner, Jack L. Goldsmith
Public Law and Legal Theory Working Papers
The Limits of International Law sets forth a general theory of international law. The book rejects the traditional explanations of international law based on legality, morality, opinio juris, and related non-instrumental concepts. Using simple rational choice tools, the book seeks instead to provide an instrumental account of when and why nations use international law, when and why they comply with it, and when and why international law changes. The basic descriptive story is that international law emerges from and is sustained by nations acting rationally to maximize their interests (i.e., their preferences over international relations outcomes), given their perception of …
'How's My Driving?' For Everyone (And Everything?), Lior Strahilevitz
'How's My Driving?' For Everyone (And Everything?), Lior Strahilevitz
Public Law and Legal Theory Working Papers
This is a paper about using reputation tracking technologies to displace criminal law enforcement and improve the tort system. The paper contains an extended application of this idea to the regulation of motorist behavior in the United States and examines the broader case for using technologies that aggregate dispersed information in various settings where reputational concerns do not adequately deter antisocial behavior. The paper begins by exploring the existing data on “How’s My Driving?” programs for commercial fleets. Although more rigorous study is warranted, the initial data is quite promising, suggesting that the use of “How’s My Driving?” placards in …
Muslim Profiles Post 911: Is Racial Profiling An Effective Counterterrorist Measure And Does It Violate The Right To Be Free From Discrimination?, Bernard E. Harcourt
Muslim Profiles Post 911: Is Racial Profiling An Effective Counterterrorist Measure And Does It Violate The Right To Be Free From Discrimination?, Bernard E. Harcourt
Public Law and Legal Theory Working Papers
Racial profiling as a defensive counterterrorism measure necessarily implicates a rights trade-off: if effective, racial profiling limits the right of young Muslim men to be free from discrimination in order to promote the security and well-being of others. Proponents of racial profiling argue that it is based on simple statistical fact and represents “just smart law enforcement.” Opponents of racial profiling, like New York City police commissioner Raymond Kelly, say that it is dangerous and “just nuts.” As a theoretical matter, both sides are partly right. Racial profiling in the context of counterterrorism measures may increase the detection of terrorist …
The Law Of Implicit Bias, Cass R. Sunstein, Christine Jolls
The Law Of Implicit Bias, Cass R. Sunstein, Christine Jolls
Public Law and Legal Theory Working Papers
Considerable attention has been given to the Implicit Association Test (IAT), which finds that most people have an implicit and unconscious bias against members of traditionally disadvantaged groups. Implicit bias poses a special challenge for antidiscrimination law because it suggests the possibility that people are treating others differently even when they are unaware that they are doing so. Some aspects of current law operate, whether intentionally or not, as controls on implicit bias; it is possible to imagine other efforts in that vein. An underlying suggestion is that implicit bias might be controlled through a general strategy of “debiasing through …
Animal Rights Without Controversy, Cass R. Sunstein, Jeff Leslie
Animal Rights Without Controversy, Cass R. Sunstein, Jeff Leslie
Public Law and Legal Theory Working Papers
Many consumers would be willing to pay something to reduce the suffering of animals used as food. The problem is that existing markets do not disclose the relevant treatment of animals, even though that treatment would trouble many consumers. Steps should be taken to promote disclosure, so as to fortify market processes and to promote democratic discussion of the treatment of animals. In the context of animal welfare, a serious problem is that people’s practices ensure outcomes that defy their existing moral commitments. A disclosure regime could improve animal welfare without making it necessary to resolve the most deeply contested …
Self-Defeating Proposals: Ackerman On Emergency Powers, Adrian Vermeule
Self-Defeating Proposals: Ackerman On Emergency Powers, Adrian Vermeule
Public Law and Legal Theory Working Papers
No abstract provided.
The Delegation Lottery, Adrian Vermeule
The Delegation Lottery, Adrian Vermeule
Public Law and Legal Theory Working Papers
No abstract provided.
The Law Of Other States, Cass R. Sunstein, Eric A. Posner
The Law Of Other States, Cass R. Sunstein, Eric A. Posner
Public Law and Legal Theory Working Papers
The question whether courts should consult the laws of “other states” has produced intense controversy. But in some ways, this practice is entirely routine; within the United States, state courts regularly consult the decisions of other state courts in deciding on the common law, the interpretation of statutory law, and even on the meaning of state constitutions. A formal argument in defense of such consultation stems from the Condorcet Jury Theorem, which says that under certain conditions, a widespread practice, accepted by a number of independent actors, is highly likely to be right. It follows that if a large majority …
Captive Audiences And The First Amendment, Douglas Gary Lichtman
Captive Audiences And The First Amendment, Douglas Gary Lichtman
Public Law and Legal Theory Working Papers
No abstract provided.
Transparency And Participation In Criminal Procedure, Stephanos Bibas
Transparency And Participation In Criminal Procedure, Stephanos Bibas
Public Law and Legal Theory Working Papers
The insiders who run the criminal justice system–judges, police, and especially prosecutors–have information, power, and self-interests that greatly influence the criminal justice process and outcomes. Outsiders–crime victims, bystanders, and most of the general public–find the system frustratingly opaque, insular, and unconcerned with proper retribution. As a result, a spiral ensues: insiders twist rules as they see fit, outsiders try to constrain them, and insiders find new ways to evade or manipulate the new rules. The gulf between insiders and outsiders undercuts the instrumental, moral, and expressive efficacy of criminal procedure in serving the criminal law’s substantive goals. The gulf clouds …
Burkean Minimalism, Cass R. Sunstein
Burkean Minimalism, Cass R. Sunstein
Public Law and Legal Theory Working Papers
Burkean minimalism has long played an important role in constitutional law. Like other judicial minimalists, Burkeans believe in rulings that are at once narrow and theoretically unambitious; what Burkeans add is an insistence on respect for traditional practices and an intense distrust of those who would renovate social practices by reference to moral or political reasoning of their own. An understanding of the uses and limits of Burkean minimalism helps to illuminate a number of current debates, including those involving substantive due process, the Establishment Clause, and the power of the President to protect national security. Burkean minimalists oppose, and …
Should We Aggregate Mental Hospitalization And Prison Population Rates In Empirical Research On The Relationship Between Incarceration And Crime, Unemployment, Poverty, And Other Social Indicators?, Bernard E. Harcourt
Public Law and Legal Theory Working Papers
The incarceration explosion of the late twentieth century set off a storm of longitudinal research on the relationship between rates of imprisonment and crime, unemployment, education, and other social indicators. Those studies, however, are flawed because they fail to measure confinement properly. They rely on imprisonment data only, and ignore historical rates of mental hospitalization. With the exception of a discrete literature on the interdependence of the mental hospital and prison populations and some studies on explanations for the prison expansion, none of the empirical work related to the incarceration explosion—or for that matter, older research on the prison-crime and …
Transparency In The Budget Process, Elizabeth Garrett, Adrian Vermeule
Transparency In The Budget Process, Elizabeth Garrett, Adrian Vermeule
Public Law and Legal Theory Working Papers
Budget procedures are often adopted or changed to improve “transparency” in budgeting. This phrase can refer to two different, although related, stages of the budget process. First, transparency may refer to the outputs of budgeting; here the ideal is that the tradeoffs inherent in a budget should be made clear, salient and understandable to policy makers and the public. Second, transparency may refer to the inputs of budgeting; here the ideal is to ensure that the decision-making process is itself conducted in public. This paper focuses on the second concept of budget transparency—the degree to which important budgeting decisions are …