Open Access. Powered by Scholars. Published by Universities.®
Articles 1 - 30 of 31
Full-Text Articles in Law
Endorsement Retires: From Religious Symbols To Anti-Sorting Principles, Adam M. Samaha
Endorsement Retires: From Religious Symbols To Anti-Sorting Principles, Adam M. Samaha
Public Law and Legal Theory Working Papers
No abstract provided.
Frugal And (Sometimes) Wrong, Cass R. Sunstein
Frugal And (Sometimes) Wrong, Cass R. Sunstein
Public Law and Legal Theory Working Papers
Do moral heuristics operate in the moral domain? If so, do they lead to moral errors? This brief essay offers an affirmative answer to both questions. In so doing, it responds to an essay by Gerd Gigerenzer on the nature of heuristics, moral and otherwise. While focused on morality, the discussion bears on the general debate between those who emphasize cognitive errors, sometimes produced by heuristics, and those who emphasize the frequent success of heuristics in producing sensible judgments in the real world. General claims are that it is contentious to see moral problems as ones of arithmetic, and that …
Information Asymmetries And The Rights To Exclude, Lior Strahilevitz
Information Asymmetries And The Rights To Exclude, Lior Strahilevitz
Public Law and Legal Theory Working Papers
No abstract provided.
Justice Breyer's Democratic Pragmatism, Cass R. Sunstein
Justice Breyer's Democratic Pragmatism, Cass R. Sunstein
Public Law and Legal Theory Working Papers
There have been many efforts to reconcile judicial review with democratic self-government. Some such efforts attempt to justify judicial review if and to the extent that it promotes self-rule. Active Liberty, by Justice Stephen Breyer, is in this tradition; but it is also marked by a heavy pragmatic orientation, emphasizing as it does the need for close attention to purposes and to the importance of consequences to legal interpretation. Its distinctiveness lies in its effort to forge close connections among three seemingly disparate ideas: a democratic account of judicial review; a purposive understanding of legal texts; and a neo-pragmatic emphasis …
Undue Process: Congressional Referral And Judicial Resistance In The Schiavo Controversy, Adam M. Samaha
Undue Process: Congressional Referral And Judicial Resistance In The Schiavo Controversy, Adam M. Samaha
Public Law and Legal Theory Working Papers
No abstract provided.
Political Constraints On Supreme Court Reform, Adrian Vermeule
Political Constraints On Supreme Court Reform, Adrian Vermeule
Public Law and Legal Theory Working Papers
No abstract provided.
When 2 Or 3 Come Together, Kelsi Brown Corkran, Tracey L. Meares
When 2 Or 3 Come Together, Kelsi Brown Corkran, Tracey L. Meares
Public Law and Legal Theory Working Papers
This article investigates policies that are responsive to crime in disadvantaged, urban neighborhoods from a community-based context. The vehicle is an analysis of a community-wide prayer vigil held in Chicago in May of 1997. The vigil resulted from a collaboration between the Chicago Police Department and hundreds of (mostly) African- American churches on Chicago’s West Side. Strikingly, the local police district’s commander facilitated the vigil. We explain the sociological and political significance of this collaboration by drawing upon the “Chicago School” of urban sociology and demonstrating theoretically and empirically the potential for the collaboration, through the integration of key community …
Reparations As Rough Justice, Adrian Vermeule
Reparations As Rough Justice, Adrian Vermeule
Public Law and Legal Theory Working Papers
No abstract provided.
The Business Of Democracy Is Democracy, John P. Mccormick, Arthur J. Jacobson
The Business Of Democracy Is Democracy, John P. Mccormick, Arthur J. Jacobson
Public Law and Legal Theory Working Papers
No abstract provided.
The Phantom Philosophy? An Empirical Investigation Of Legal Interpretation, William K. Ford, Jason J. Czarnezki
The Phantom Philosophy? An Empirical Investigation Of Legal Interpretation, William K. Ford, Jason J. Czarnezki
Public Law and Legal Theory Working Papers
This Article tests a model of judicial decisionmaking that incorporates elements of both the attitudinal model and the legal model, along with measures of collegiality and other variables. We develop a measure of interpretive philosophy relying primarily on judicial opinions, which we code for certain indicators of traditional interpretive approaches (i.e., the use of interpretive tools). The critical question is whether judges with similar interpretive philosophies are more likely to agree with one another when deciding cases. Our general finding is that ideology and interpretive philosophy are not significant predictors of agreement. Instead, experience on the bench together is a …
Executive Exposure: Government Secrecy, Constitutional Law, And Platforms For Judicial Elaboration, Adam M. Samaha
Executive Exposure: Government Secrecy, Constitutional Law, And Platforms For Judicial Elaboration, Adam M. Samaha
Public Law and Legal Theory Working Papers
American law never reached a satisfying conclusion about public access to information on government operations. But recent events are prompting reconsideration. As our current system is reassessed, three shortfalls in past debates should be overcome. The first involves ignorance of foreign systems. Other democracies grapple with information access problems, and their recent experiments are illuminating. Indeed they expose two additional domestic weaknesses. One is a line we have drawn within constitutional law. Courts and commentators tend to treat constitutional issues of public access separately from those of executive discretion to withhold information. These matters should be seen as parts of …
Absolute Voting Rules, Adrian Vermeule
Absolute Voting Rules, Adrian Vermeule
Public Law and Legal Theory Working Papers
No abstract provided.
Emergencies And Democratic Failure, Eric A. Posner, Adrian Vermeule
Emergencies And Democratic Failure, Eric A. Posner, Adrian Vermeule
Public Law and Legal Theory Working Papers
Critics of emergency measures such as the U.S. government’s response to 9/11 invoke the Carolene Products framework, which directs courts to apply strict scrutiny to laws and executive actions that target political or ethnic minorities. The critics suggest that such laws and actions are usually the product of democratic failure, and are especially likely to be so during emergencies. However, the application of the Carolene Products framework to emergencies is questionable. Democratic failure is no more likely during emergencies than during normal times, and courts are in a worse position to correct democratic failures during emergencies than during normal times. …
Pets Or Meat, Mary Anne Case
Pets Or Meat, Mary Anne Case
Public Law and Legal Theory Working Papers
No abstract provided.
Exclusionary Amenities In Residential Communities, Lior Strahilevitz
Exclusionary Amenities In Residential Communities, Lior Strahilevitz
Public Law and Legal Theory Working Papers
No abstract provided.
Ranking Law Schools: A Market Test?, Cass R. Sunstein
Ranking Law Schools: A Market Test?, Cass R. Sunstein
Public Law and Legal Theory Working Papers
Instead of ranking law schools through statistical aggregations of expert judgments, or by combining a list of heterogeneous factors, it would be possible to rely on a market test, simply by examining student choices. This tournament-type approach would have the large advantage of relying on the widely dispersed information that students actually have; it would also reduce reliance on factors that can be manipulated (and whose manipulation does no good other than to increase rankings). On the other hand, a market test has several problems as a measure of law school quality, partly because cognitive biases and social influences may …
Disrespecting The "Opinions Of Mankind", Eugene Kontorovich
Disrespecting The "Opinions Of Mankind", Eugene Kontorovich
Public Law and Legal Theory Working Papers
No abstract provided.
Intellectual Property, Innovation, And Decision Architectures, Tim Wu
Intellectual Property, Innovation, And Decision Architectures, Tim Wu
Public Law and Legal Theory Working Papers
No abstract provided.
Administrative Law Goes To War, Cass R. Sunstein
Administrative Law Goes To War, Cass R. Sunstein
Public Law and Legal Theory Working Papers
What are the President’s war-making powers? This essay, a brief reply to an article by Curtis Bradley and Jack Goldsmith, contends that the answer lies in administrative law, at least in the first instance. The President’s authority often depends on what Congress has said, and under established principles, the President has a great deal of power to interpret ambiguities in congressional enactments – in war no less than in peace. The principal qualifications involve interpretive principles, also found in administrative law, that call for a narrow construction of presidential authority to invade constitutionally sensitive interests. The relevant arguments are illustrated …
Against Prediction: Sentencing, Policing, And Punishing In An Actuarial Age, Bernard E. Harcourt
Against Prediction: Sentencing, Policing, And Punishing In An Actuarial Age, Bernard E. Harcourt
Public Law and Legal Theory Working Papers
Actuarial methods—i.e. the use of statistical rather than clinical methods on large datasets of criminal offending rates to determine different levels of offending associated with one or more group traits, in order to (1) predict past, present or future criminal behavior and (2) administer a criminal justice outcome—now permeate the criminal law and its enforcement. With the single exception of racial profiling against African- Americans and Hispanics, most people view the turn to the actuarial as efficient, rational, and wealth-maximizing. The fact is, law enforcement agencies can detect more crime with the same resources if they investigate citizens who are …
Broken Windows: New Evidence From New York City And A Five-City Social Experiment, Bernard E. Harcourt, Jens Ludwig
Broken Windows: New Evidence From New York City And A Five-City Social Experiment, Bernard E. Harcourt, Jens Ludwig
Public Law and Legal Theory Working Papers
In 1982, James Q. Wilson and George Kelling suggested in an influential article in the Atlantic Monthly that targeting minor disorder could help reduce more serious crime. More than 20 years later, the three most populous cities in the U.S.—New York, Chicago and, most recently, Los Angeles—have all adopted at least some aspect of Wilson and Kelling’s theory, primarily through more aggressive enforcement of minor misdemeanor laws. Remarkably little, though, is currently known about the effect of broken windows policing on crime. According to a recent National Research Council report, existing research does not provide strong support for the broken …
Chevron Step Zero, Cass R. Sunstein
Chevron Step Zero, Cass R. Sunstein
Public Law and Legal Theory Working Papers
The most famous case in administrative law, Chevron U.S.A. v. Natural Resources Defense Council, Inc., has come to be seen as a counter-Marbury, or even a McCulloch v. Maryland, for the administrative state. But in the last period, new debates have broken out over Chevron Step Zero—the initial inquiry into whether Chevron applies at all. These debates are the contemporary location of a longstanding dispute between Justice Scalia and Justice Breyer over whether Chevron is a revolutionary decision, establishing an across-the-board rule, or instead a mere synthesis of preexisting law, inviting a case-by-case inquiry into congressional instructions on the deference …
Policing L.A.'S Skid Row: Crime And Real Estate Development In Downtown Los Angeles [An Experiment In Real Time], Bernard E. Harcourt
Policing L.A.'S Skid Row: Crime And Real Estate Development In Downtown Los Angeles [An Experiment In Real Time], Bernard E. Harcourt
Public Law and Legal Theory Working Papers
No abstract provided.
The New Censorship: Institutional Review Boards, Philip Hamburger
The New Censorship: Institutional Review Boards, Philip Hamburger
Public Law and Legal Theory Working Papers
No abstract provided.
Irreversible And Catastrophic, Cass R. Sunstein
Irreversible And Catastrophic, Cass R. Sunstein
Public Law and Legal Theory Working Papers
As many treaties and statutes emphasize, some risks are distinctive in the sense that they are potentially irreversible or catastrophic; for such risks, it is sensible to take extra precautions. When a harm is irreversible, and when regulators lack information about its magnitude and likelihood, they should purchase an “option” to prevent the harm at a later date—the Irreversible Harm Precautionary Principle. This principle brings standard option theory to bear on environmental law and risk regulation. And when catastrophic outcomes are possible, it makes sense to take special precautions against the worst-case scenarios—the Catastrophic Harm Precautionary Principle. This principle is …
Political Trials In Domestic And International Law, Eric A. Posner
Political Trials In Domestic And International Law, Eric A. Posner
Public Law and Legal Theory Working Papers
Due process protections and other constitutional restrictions normally ensure that citizens cannot be tried and punished for political dissent, but these same restrictions interfere with criminal convictions of terrorists and others who pose a non-immediate but real threat to public safety. To counter these threats, governments may use various subterfuges to avoid constitutional protections, often with the complicity of judges, but when they do so, they risk losing the confidence of the public, which may believe that the government targets legitimate political opponents. This paper argues that that the amount of process enjoyed by defendants in criminal trials reflects a …
Should Coercive Interrogation Be Legal?, Eric A. Posner, Adrian Vermeule
Should Coercive Interrogation Be Legal?, Eric A. Posner, Adrian Vermeule
Public Law and Legal Theory Working Papers
No abstract provided.
Is Capital Punishment Morally Required? The Relevance Of Life-Life Tradeoffs, Cass R. Sunstein, Adrian Vermeule
Is Capital Punishment Morally Required? The Relevance Of Life-Life Tradeoffs, Cass R. Sunstein, Adrian Vermeule
Public Law and Legal Theory Working Papers
Recent evidence suggests that capital punishment may have a significant deterrent effect, preventing as many eighteen or more murders for each execution. This evidence greatly unsettles moral objections to the death penalty, because it suggests that a refusal to impose that penalty condemns numerous innocent people to death. Capital punishment thus presents a life-life tradeoff, and a serious commitment to the sanctity of human life may well compel, rather than forbid, that form of punishment. Moral objections to the death penalty frequently depend on a distinction between acts and omissions, but that distinction is misleading in this context, because government …
Libertarian Panics, Adrian Vermeule
Libertarian Panics, Adrian Vermeule
Public Law and Legal Theory Working Papers
No abstract provided.
Partisan Fairness And Resistricting Politics, Adam B. Cox
Partisan Fairness And Resistricting Politics, Adam B. Cox
Public Law and Legal Theory Working Papers
Courts and scholars have operated on the implicit assumption that the Supreme Court’s “one person, one vote” jurisprudence put redistricting politics on a fixed, ten-year cycle. Recent redistricting controversies in Colorado, Texas, and elsewhere, however, have undermined this assumption, highlighting the fact that most states are currently free to redraw election districts as often as they like. This essay explores whether partisan fairness—a normative commitment that both scholars and the Supreme Court have identified as a central concern of districting arrangements— would be promoted by a procedural rule limiting the frequency of redistricting. While the literature has not considered this …