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Full-Text Articles in Law
Political Risk And Sovereign Debt Contracts, Eric A. Posner, Stephen J. Choi, G. Mitu Gulati
Political Risk And Sovereign Debt Contracts, Eric A. Posner, Stephen J. Choi, G. Mitu Gulati
Public Law and Legal Theory Working Papers
Default on sovereign debt is a form of political risk. Issuers and creditors have responded to this risk both by strengthening the terms in sovereign debt contracts that enable creditors to enforce their debts judicially and by creating terms that enable sovereigns to restructure their debts. These apparently contradictory approaches reflect attempts to solve an incomplete contracting problem in which debtors need to be forced to repay debts in good states of the world; debtors need to be granted partial relief from debt payments in bad states; debtors may attempt to exploit divisions among creditors in order to opportunistically reduce …
Some Skeptical Comments On Beth Simmons's Mobilizing For Human Rights, Eric A. Posner
Some Skeptical Comments On Beth Simmons's Mobilizing For Human Rights, Eric A. Posner
Public Law and Legal Theory Working Papers
These comments address some theoretical, empirical, and normative claims made by Beth Simmons in her book, Mobilizing for Human Rights. The empirical heart of the book is rigorous, but because of the shallowness of the data and the limits of the empirical methodology, the implications for human rights law are narrow and to a large extent ambiguous.
Does Accuracy Improve The Information Value Of Trials?, Scott Baker, Anup Malani
Does Accuracy Improve The Information Value Of Trials?, Scott Baker, Anup Malani
Public Law and Legal Theory Working Papers
We develop a model where products liability trials provide information to consumers who are not parties to the litigation. Consumers use this information to take precautions against dangerous products. A critical assumption is that consumers cannot differentiate between firms that have never been sued and firms that have been sued but settled out of court. In this framework, we show that perfectly accurate courts do not maximize information to consumers and thus welfare, contrary to Kaplow and Shavell (1994). More accurate courts provide more information only if producers go to trial. Greater accuracy, however, encourages producers of dangerous products to …
Dustin Guzior And Anup Malani, Implicit Bias In Legal Interpretation, Ward Farnsworth
Dustin Guzior And Anup Malani, Implicit Bias In Legal Interpretation, Ward Farnsworth
Public Law and Legal Theory Working Papers
What role do policy preferences play when a judge or any other reader decides what a statute or other legal text means? Most judges think of themselves as doing law, not politics. Yet the observable decisions that judges make often follow patterns that are hard to explain by anything other than policy preferences. Indeed, if one presses the implications of the data too hard, it is likely to be heard as an accusation of bad faith—a claim that the judge or other decision-maker isn't really earnest in trying to separate preference from judgment. This does not advance the discussion, and …
Improving The Fda Approval Process, Mark Van Der Laan, Anup Malani, Oliver Van Der Bembom
Improving The Fda Approval Process, Mark Van Der Laan, Anup Malani, Oliver Van Der Bembom
Public Law and Legal Theory Working Papers
The FDA employs an average-patient standard when reviewing drugs: it approves a drug only if is safe and effective for the average patient in a clinical trial. It is common, however, for patients to respond differently to a drug. Therefore, the average-patient standard can reject a drug that benefits certain patient subgroups (false negative) and even approval a drug that harms other patient subgroups (false positives). These errors increase the cost of drug development – and thus health care – by wasting research on unproductive or unapproved drugs. The reason why the FDA sticks with an average patient standard is …
Regulation For The Sake Of Appearance, Adam M. Samaha
Regulation For The Sake Of Appearance, Adam M. Samaha
Public Law and Legal Theory Working Papers
Appearance is often given as a justification for decisions, including government decisions, but the logic of appearance arguments is not well theorized. This Article develops a framework for understanding and evaluating appearance-based justifications for government decisions. First, working definitions are offered to distinguish appearance from reality. Next, certain relationships between appearance and reality are singled out for attention. Sometimes reality is insulated from appearance, sometimes appearance helps drive reality over time, and sometimes appearance and reality collapse from the outset. Finally, sets of normative questions are suggested based on the supposed relationship between appearance and reality for a given situation. …
Talk About Talking About Constitutional Law, Adam M. Samaha
Talk About Talking About Constitutional Law, Adam M. Samaha
Public Law and Legal Theory Working Papers
Constitutional theory branches into decision theory and discourse theory. The former concentrates on how constitutional decisions are or should be made, the latter on how constitutional issues are or should be discussed. For its part, originalism began as a method for resolving constitutional disagreement but it has migrated into discourse theory, as well. Jack Balkin’s “living originalism” illustrates the move. This essay examines inclusive versions of originalism like Balkin’s that permit many different answers to constitutional questions. The essay then suggests pathologies associated with loose constitutional discourse in general. For instance, a large domain for constitutional discourse can crowd out …
Deference To The Executive In The United States After 9/11: Congress, The Courts, And The Office Of Legal Counsel, Eric A. Posner
Deference To The Executive In The United States After 9/11: Congress, The Courts, And The Office Of Legal Counsel, Eric A. Posner
Public Law and Legal Theory Working Papers
The deference thesis is that Congress and the judiciary should defer to the executive’s policy judgments during national emergencies. A recent criticism of the deference theory draws on the analogy of the emergency room medical protocol to argue that emergencies call for rule-bound constraint of the executive rather than deference to it. However, this criticism rests on a misunderstanding of the tradeoff between rules and standards. Some scholars who have despaired of congressional or judicial constraint of the executive, but believe that some sort of constraint is desirable, have suggested that the executive’s own legal adviser, the Office of Legal …
Comparative Constitutional Law: Introduction, Tom Ginsburg, Rosalind Dixon
Comparative Constitutional Law: Introduction, Tom Ginsburg, Rosalind Dixon
Public Law and Legal Theory Working Papers
Comparative constitutional law is a newly energized field in the early 21st century. Never before has the field had such a broad range of interdisciplinary interest, with lawyers, political scientists, sociologists and even economists making contributions to our collective understanding of how constitutions are formed and how they operate. Never before has there been such demand from courts, lawyers and constitution-makers in a wide range of countries for comparative legal analysis. And never before has the field been so institutionalized, with new regional and international associations providing fora for the exchange of ideas and the organization of collaborative projects. This …
Delegation In Immigration Law, Eric A. Posner, Adam B. Cox
Delegation In Immigration Law, Eric A. Posner, Adam B. Cox
Public Law and Legal Theory Working Papers
Immigration law both screens migrants and regulates the behavior of migrants after they have arrived. Both activities are information-intensive because the migrant’s “type” and the migrant’s post-arrival activity are often forms of private information that are not immediately accessible to government agents. To overcome this information problem, the national government can delegate the screening and regulation functions. American immigration law, for example, delegates extensive authority to both private entities—paradigmatically, employers and families—and to the fifty states. From the government’s perspective, delegation carries with it benefits and costs. On the benefit side, agents frequently have easy access to information about the …
Latin American Presidentialism In Comparative And Historical Perspective, Jose Antonio Cheibub, Zachary Elkins, Tom Ginsburg
Latin American Presidentialism In Comparative And Historical Perspective, Jose Antonio Cheibub, Zachary Elkins, Tom Ginsburg
Public Law and Legal Theory Working Papers
No abstract provided.
Judicial Tactics In The European Court Of Human Rights, Shai Dothan
Judicial Tactics In The European Court Of Human Rights, Shai Dothan
Public Law and Legal Theory Working Papers
The European Court of Human Rights (ECHR) has been criticized for issuing harsher judgments against developing states than it does against the states of Western Europe. It has also been seen by some observers as issuing increasingly demanding judgments. This paper develops a theory of judicial decision-making that accounts for these trends. In order to obtain higher compliance rates with the judgments that promote its preferences, the ECHR seeks to increase its reputation. The court gains reputation every time a state complies with its judgments, and loses reputation every time a state fails to comply with its judgments. Not every …
Regulation, Unemployment, And Cost-Benefit Analysis, Eric A. Posner, Jonathan Masur
Regulation, Unemployment, And Cost-Benefit Analysis, Eric A. Posner, Jonathan Masur
Public Law and Legal Theory Working Papers
Regulatory agencies take account of the potential unemployment effects of proposed regulations in an ad hoc, theoretically incorrect way. Current practice is to conduct feasibility analysis, under which the agency predicts the unemployment effects of a proposed regulation, and then declines to regulate (or weakens the proposed regulation) if the unemployment effects exceed an unarticulated threshold, that is, seem “too high.” Agencies do not reveal the threshold, do not explain why certain unemployment effects are excessive, and do not explain how they compare unemployment effects and the net benefits of the regulation. Many agencies also predict unemployment effects incorrectly. The …
Rhetoric And Reality In Early American Legal History: A Reply To Gordon Wood, Alison Lacroix
Rhetoric And Reality In Early American Legal History: A Reply To Gordon Wood, Alison Lacroix
Public Law and Legal Theory Working Papers
No abstract provided.
Teaching Patriotism: Love And Critical Reform, Martha Craven Nussbaum
Teaching Patriotism: Love And Critical Reform, Martha Craven Nussbaum
Public Law and Legal Theory Working Papers
No abstract provided.
Commensurability And Agency: Two Yet-To-Be-Met Challenges For Law And Economics, Alon Harel, Ariel Porat
Commensurability And Agency: Two Yet-To-Be-Met Challenges For Law And Economics, Alon Harel, Ariel Porat
Public Law and Legal Theory Working Papers
No abstract provided.
Property And Precaution, Lee Anne Fennell
Property And Precaution, Lee Anne Fennell
Public Law and Legal Theory Working Papers
Property in land suffers from an unacknowledged precautionary deficit. Ownership is dispensed in standardized blocks of monopoly control that are routinely retained in their entirety until someone raises an issue regarding an actual or potential incompatible land use. This arrangement, which encourages owners to take sustained, unpriced draws against a limited stock of future flexibility, sets the stage for future impasse as inconsistent plans develop. It also makes property an unnecessarily accident-prone institution, given the role that bargaining failure plays in producing costly land use conflicts. Expanding the slate of potential precautions beyond owners' locational and operational choices to include …
Radical Throught From Marx, Nietzsche, And Freud, Through Foucault, To The Present: Comments On Steven Lukes’ “In Defense Of False Consciousness, Bernard E. Harcourt
Radical Throught From Marx, Nietzsche, And Freud, Through Foucault, To The Present: Comments On Steven Lukes’ “In Defense Of False Consciousness, Bernard E. Harcourt
Public Law and Legal Theory Working Papers
No abstract provided.
Constitutional Amendment Rules: A Comparative Perspective, Rosalind Dixon
Constitutional Amendment Rules: A Comparative Perspective, Rosalind Dixon
Public Law and Legal Theory Working Papers
No abstract provided.
Constitutional Amendment Rules: The Denominator Problem, Rosalind Dixon, Richard T. Holden
Constitutional Amendment Rules: The Denominator Problem, Rosalind Dixon, Richard T. Holden
Public Law and Legal Theory Working Papers
No abstract provided.
Naturalized Jurisprudence And American Legal Realism Revisited, Brian Leiter
Naturalized Jurisprudence And American Legal Realism Revisited, Brian Leiter
Public Law and Legal Theory Working Papers
No abstract provided.
Reconsidering Racial And Partisan Gerrymandering, Richard T. Holden, Adam B. Cox
Reconsidering Racial And Partisan Gerrymandering, Richard T. Holden, Adam B. Cox
Public Law and Legal Theory Working Papers
In recent years, scholars have come to a general agreement about the relationship between partisan gerrymandering and racial redistricting. Drawing districts that contain a majority of minority voters, as is often required by the Voting Rights Act, is said to help minority voters in those districts but hurt the Democratic Party more broadly. This Article argues that this familiar claim is based on a mistaken assumption about how redistricters can best manipulate districts for partisan gain—an assumption grounded in the idea that all voters can be thought of as either Democrats or Republicans. Relaxing this assumption, and acknowledging that voters …
The Circumstances Of Civility, Brian Leiter
The Circumstances Of Civility, Brian Leiter
Public Law and Legal Theory Working Papers
No abstract provided.
Transnational Constitutionalism And Unconstitutional Constitutional Amendments, Rosalind Dixon
Transnational Constitutionalism And Unconstitutional Constitutional Amendments, Rosalind Dixon
Public Law and Legal Theory Working Papers
Many courts, and constitutions, worldwide recognize the concept of an “unconstitutional constitutional amendment”, yet such a concept clearly raises troubling issues from the perspective of the rule of law, or concerns about judicial discretion. This essay addresses this issue – of discretion in the context of a doctrine of substantively unconstitutional constitutional amendments – by considering the possibility of courts limiting the scope of their discretion by linking notions of what is “fundamental” in a domestic constitutional system to common or generic transnational legal practices. This idea of transnational anchoring builds on previous work by scholars in the field, such …
Weak-Form Judicial Review And American Exceptionalism, Rosalind Dixon
Weak-Form Judicial Review And American Exceptionalism, Rosalind Dixon
Public Law and Legal Theory Working Papers
Recent Commonwealth rights charters, various scholars have argued, represent a new "weaker" model of constitutional rights protection than the U.S. constitutional model: unlike the U.S. Bill of Rights, they give legislatures broad formal power to override rights, and therefore also court decisions. The article argues, however, that in practice such powers have rarely if ever been used by Commonwealth legislatures, and therefore, that if judicial review is in fact weaker in Commonwealth countries, compared to the U.S., it is only because Commonwealth courts have been more willing than the U.S. Supreme Court to uphold ordinary legislative attempts to override court …
Updating Constitutional Rules, Rosalind Dixon
Updating Constitutional Rules, Rosalind Dixon
Public Law and Legal Theory Working Papers
No abstract provided.
Abortion, Dignity And A Capabilities Approach, Rosalind Dixon, Martha Craven Nussbaum
Abortion, Dignity And A Capabilities Approach, Rosalind Dixon, Martha Craven Nussbaum
Public Law and Legal Theory Working Papers
No abstract provided.
The Law Of Religious Liberty In A Tolerant Society, Brian Leiter
The Law Of Religious Liberty In A Tolerant Society, Brian Leiter
Public Law and Legal Theory Working Papers
No abstract provided.
American Policing At A Crossroads, Tom R. Tyler, Stephen J. Schulhofer, Aziz Huq
American Policing At A Crossroads, Tom R. Tyler, Stephen J. Schulhofer, Aziz Huq
Public Law and Legal Theory Working Papers
As victimization rates have fallen, public preoccupation with policing and its crime control impact has receded. Terrorism has become the new focal point of concern. But satisfaction with ordinary police practices hides deep problems. The time is therefore ripe for rethinking the assumptions that have guided American police for most of the past two decades. This essay proposes an empirically grounded shift to what we call a procedural justice model of policing. When law enforcement moves toward this approach, it can be more effective, at lower cost and without the negative side effects that currently hamper responses to terrorism and …
Making Willing Bodies: Manufacturing Consent Among Prisoners And Soldiers, Creating Human Subjects, Patriots, And Everyday Citizens—The University Of Chicago Malaria Experiments On Prisoners At Stateville Penitentiary, Bernard E. Harcourt
Public Law and Legal Theory Working Papers
No abstract provided.