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Probability Thresholds, Jonathan Masur
Probability Thresholds, Jonathan Masur
Articles
Scholars and lower courts have traditionally operated under the belief that cases involving direct tradeoffs between free speech and national security call for the application of straightforward cost-benefit analysis. But the Supreme Court has refused to adhere to this approach, instead deciding difficult liberty-versus-security questions with reference to a "probability threshold"--a doctrinal floor defining how likely a potential threat must be in order to register in the constitutional calculus. This doctrinal innovation has served as a necessary corrective to what would otherwise be the systematic overestimation of speech-based threats driven by the interaction of two factors. First, distinct informational asymmetries …
John Milton: Complete Poems And Major Prose, Richard A. Posner
John Milton: Complete Poems And Major Prose, Richard A. Posner
Articles
No abstract provided.
Classic Revisited: Penal Theory In Paradise Lost, Richard A. Posner, Jillisa Brittan
Classic Revisited: Penal Theory In Paradise Lost, Richard A. Posner, Jillisa Brittan
Articles
No abstract provided.
Essay: On The Divergent American Reactions To Terrorism And Climate Change, Cass R. Sunstein
Essay: On The Divergent American Reactions To Terrorism And Climate Change, Cass R. Sunstein
Articles
Two of the most important sources of catastrophic risk are terrorism and climate change. The United States has responded aggressively to the risk of terrorism while doing very little about the risk of climate change. For the United States alone, the cost of the Iraq War is in excess of the anticipated cost of the Kyoto Protocol. The divergence presents a puzzle; it also raises more general questions about both risk perception and the public demand for legislation. The best explanation for the divergence emphasizes bounded rationality. Americans believe that aggressive steps to reduce the risk of terrorism promise to …
The Common Law Genius Of The Warren Court, David A. Strauss
The Common Law Genius Of The Warren Court, David A. Strauss
Articles
The Warren Court's most important decisions-on school segregation, reapportionment, free speech, and criminal procedureare firmly entrenched in the law. But the idea persists, even among those who are sympathetic to the results that the Warren Court reached, that what the Warren Court was doing was somehow not really law: that the Warren Court "made it up," and that the important Warren Court decisions cannot be justified by reference to conventional legal materials. It is true that the Warren Court's most important decisions cannot be easily justified on the basis of the text of the Constitution or the original understandings. But …
''Don't Try This At Home': Posner As Political Economist, Lior Strahilevitz
''Don't Try This At Home': Posner As Political Economist, Lior Strahilevitz
Articles
No abstract provided.
Is Public Reason Counterproductive?, Eduardo Peñalver
The Credible Executive, Eric A. Posner, Adrian Vermeule
The Credible Executive, Eric A. Posner, Adrian Vermeule
Articles
Legal and constitutional theory has focused chiefly on the risk that voters and legislators will trust an ill-motivated executive. This Article 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 authority 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 …
On Avoiding Foundational Questions - A Reply To Andrew Coan, Cass R. Sunstein
On Avoiding Foundational Questions - A Reply To Andrew Coan, Cass R. Sunstein
Articles
No abstract provided.
Willingness To Pay Vs. Welfare, Cass R. Sunstein
Technology, Information, And Bankruptcy, Douglas G. Baird
Technology, Information, And Bankruptcy, Douglas G. Baird
Articles
Financial innovations, spurred by the growth of information technology, have transformed the consumer lending industry. Today lenders have unfettered access to a wider spectrum of borrowers and are better able to assess the likelihood that these borrowers will repay the debt they incur. Consequently, the level of consumer household debt has risen dramatically in the past three decades, and will continue to rise, which will lead naturally to an increase in bankruptcy filings. Although our initial intuition tells us that bankruptcies are bad, the author advances the idea that this development is inevitable and that instead of focusing on amending …
Judge Richard Posner On Civil Liberties: Pragmatic Authoritarian Libertarian, Bernard E. Harcourt
Judge Richard Posner On Civil Liberties: Pragmatic Authoritarian Libertarian, Bernard E. Harcourt
Articles
No abstract provided.
Introduction To The Italian Edition Of Overdose, Richard A. Epstein
Introduction To The Italian Edition Of Overdose, Richard A. Epstein
Articles
No abstract provided.
If People Would Be Outraged By Their Rulings, Should Judges Care, Cass R. Sunstein
If People Would Be Outraged By Their Rulings, Should Judges Care, Cass R. Sunstein
Articles
At first glance, judicial anticipation of public outrage and its effects seems incompatible with judicial independence. Nonetheless, judges might be affected by the prospect of outrage for both consequentialist and epistemic reasons. If a judicial ruling would undermine the cause that it is meant to promote or impose serious social harms, judges might have reason to hesitate on consequentialist grounds. The prospect ofpublic outrage might also suggest that the court's ruling would be incorrect on the merits; if most people disagree with the court's decision, perhaps the court is wrong. Those who adopt a method of constitutional interpretation on consequentialist …
The Temporal Dimension Of Voting Rights, Adam B. Cox
In Defense Of Prometheus: Some Ethical, Economic, And Regulatory Issues Of Sports Doping, Richard A. Posner
In Defense Of Prometheus: Some Ethical, Economic, And Regulatory Issues Of Sports Doping, Richard A. Posner
Articles
No abstract provided.
Due Process Traditionalism, Cass R. Sunstein
Due Process Traditionalism, Cass R. Sunstein
Articles
In important cases, the Supreme Court has limited the scope of "substantive due process" by reference to tradition, but it has yet to explain why it has done so. Due process traditionalism might be defended in several distinctive ways. The most ambitious defense draws on a set of ideas associated with Edmund Burke and Friedrich Hayek, who suggested that traditions have special credentials by virtue of their acceptance by many minds. But this defense runs into three problems. Those who have participated in a tradition may not have accepted any relevant proposition; they might suffer from a systematic bias; and …
Of Montreal And Kyoto: A Tale Of Two Protocols, Cass R. Sunstein
Of Montreal And Kyoto: A Tale Of Two Protocols, Cass R. Sunstein
Articles
No abstract provided.
On Discounting Regulatory Benefits: Risk, Money, And Intergenerational Equity, Arden Rowell, Cass R. Sunstein
On Discounting Regulatory Benefits: Risk, Money, And Intergenerational Equity, Arden Rowell, Cass R. Sunstein
Articles
There is an elaborate debate over the practice of "discounting" regulatory benefits, such as environmental improvements and decreased risks to health and life, when those benefits will not be enjoyed until some future date. Economists tend to think that, as a general rule, such benefits should be discounted in the same way as money; many philosophers and lawyers doubt that conclusion on empirical and normative grounds. Both sides frequently neglect a simple point: if regulators are interested in how people currently value risks that will not come to fruition for a significant time, they can use people's current willingness to …
On The Divergent American Reactions To Terrorism And Climate Change, Cass R. Sunstein
On The Divergent American Reactions To Terrorism And Climate Change, Cass R. Sunstein
Articles
Two of the most important sources of catastrophic risk are terrorism and climate change. The United States has responded aggressively to the risk of terrorism while doing very little about the risk of climate change. For the United States alone, the cost of the Iraq War is in excess of the anticipated cost of the Kyoto Protocol. The divergence presents a puzzle; it also raises more general questions about both risk perception and the public demand for legislation. The best explanation for the divergence emphasizes bounded rationality. Americans believe that aggressive steps to reduce the risk of terrorism promise to …
What Good Is The Social Model Of Disability?, Adam M. Samaha
What Good Is The Social Model Of Disability?, Adam M. Samaha
Articles
A social model of disability relates a person's disadvantage to the combination of personal traits and social setting. The model appears to have had a profound impact on academics, politics, and law since the 1970s. Scholars have debated the model's force but its limitations are more severe than have been recognized. This Article claims that the model, like all social construction accounts, has essentially no policy implications. Its impact depends on normative commitments developed by some other logic, such as membership in the disability rights movement or adherence to versions of libertarian, utilitarian, or egalitarian theory that are triggered by …
Science And Morality: Pragmatic Reflections On Rorty's 'Pragmatism', Brian Leiter
Science And Morality: Pragmatic Reflections On Rorty's 'Pragmatism', Brian Leiter
Articles
No abstract provided.
Timing Rules And Legal Institutions, Jacob Gersen, Eric A. Posner
Timing Rules And Legal Institutions, Jacob Gersen, Eric A. Posner
Articles
Constitutional and legislative restrictions on the timing of legislation and regulation are ubiquitous, but these "timing rules" have received little attention in the legal literature. Yet the timing of a law can be just as important as its content. The timing of a law determines whether its benefits are created sooner or later. This determines how the costs and benefits are spread across time, and hence how they are distributed to the advantage or disadvantage of different private groups, citizens, and governmental officials. We argue that timing rules are, and should be, used to reduce agency problems within the legislature …
Climate Change And International Human Rights Litigation: A Critical Appraisal, Eric A. Posner
Climate Change And International Human Rights Litigation: A Critical Appraisal, Eric A. Posner
Articles
No abstract provided.
Defanging Irbs: Replacing Coercion With Information, Richard A. Epstein
Defanging Irbs: Replacing Coercion With Information, Richard A. Epstein
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No abstract provided.
Restoring The Right Constitution? (Reviewing Randy Barnett, Restoring The Lost Constitution: The Presumption Of Liberty (2004)), Eduardo Peñalver
Restoring The Right Constitution? (Reviewing Randy Barnett, Restoring The Lost Constitution: The Presumption Of Liberty (2004)), Eduardo Peñalver
Articles
No abstract provided.
Cost-Benefit Analysis Without Analyzing Costs Of Benefits: Reasonable Accommodation, Balancing, And Stigmatic Harms, Cass R. Sunstein
Cost-Benefit Analysis Without Analyzing Costs Of Benefits: Reasonable Accommodation, Balancing, And Stigmatic Harms, Cass R. Sunstein
Articles
Is an accommodation "reasonable" under the Americans with Disabilities Act if and only if the benefits are roughly proportional to the costs? How should benefits and costs be assessed? Should courts ask how much disabled employees are willing to pay to obtain the accommodation, or instead how much they would have to be paid to forego the accommodation? How should stigmatic or expressive harms be valued? This Essay, written for a celebration of the work of Judge Richard A. Posner, engages these questions in a discussion of an important opinion in which Judge Posner denied accommodations involving the lowering of …
On Fairy Tales, Cass R. Sunstein
Tribute To Bernard Meltzer, Cass R. Sunstein
Backlash's Travels, Cass R. Sunstein
Backlash's Travels, Cass R. Sunstein
Articles
Sometimes the public greatly opposes the decisions of the Supreme Court; sometimes the Court seems to anticipate public backlash and even to respond to it when it occurs. Should a social planner want the Court to anticipate or to respond to backlash? No abstract answer is possible; the appropriate conclusion depends on assumptions about the capacities of courts and the capacities of those who engage in backlash. This point is demonstrated through an exploration of four imaginable worlds: Olympus, the Land of the Ancients, Lochnerland, and Athens. The four worlds are based on radically different assumptions about judicial and public …