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Full-Text Articles in Law
Rethinking Racial Profiling: A Critique Of The Economics, Civil Liberties, And Constitutional Literature And Of Criminal Profiling More Generally, Bernard E. Harcourt
Rethinking Racial Profiling: A Critique Of The Economics, Civil Liberties, And Constitutional Literature And Of Criminal Profiling More Generally, Bernard E. Harcourt
Public Law and Legal Theory Working Papers
New data on highway stops and searches from across the country have spawned renewed debate over racial profiling on the roads. The new data reveal consistently disproportionate searches of minority motorists, but, very often, an equal or lower general success rate—or “hit rate”—associated with those searches. Economists are developing new models of racial profiling to test whether the data are consistent with policing efficiency or racial prejudice, and argue that equal hit rates reflect that the police are maximizing the success rate of their searches. Civil liberties advocates are scrutinizing the same data and, in most cases, reaching opposite conclusions. …
Accommodating Emergencies, Eric A. Posner, Adrian Vermeule
Accommodating Emergencies, Eric A. Posner, Adrian Vermeule
Public Law and Legal Theory Working Papers
No abstract provided.
Ideological Voting On Federal Courts Of Appeals: A Preliminary Investigation, Cass R. Sunstein
Ideological Voting On Federal Courts Of Appeals: A Preliminary Investigation, Cass R. Sunstein
Public Law and Legal Theory Working Papers
For many decades, the United States has been conducting an extraordinary natural experiment: Randomly assigned three-judge panels on courts of appeals produce extensive evidence of the effect of judicial ideology on judges’ votes. If the political party of the appointing president is treated as a rough proxy for ideology, then it becomes possible to test three hypotheses: (a) a judge’s votes, in ideologically contested areas, can be predicted by the party of the appointing president; (b) a judge’s ideological tendency, in such areas, will be amplified if the panel has two other judges appointed by an appointing president of the …
The Judiciary Is A They, Not An It: Two Fallacies Of Interpretive Theory, Adrian Vermeule
The Judiciary Is A They, Not An It: Two Fallacies Of Interpretive Theory, Adrian Vermeule
Public Law and Legal Theory Working Papers
No abstract provided.
Insuring Against Terrorism - And Crime, Saul Levmore, Kyle D. Logue
Insuring Against Terrorism - And Crime, Saul Levmore, Kyle D. Logue
Public Law and Legal Theory Working Papers
No abstract provided.
Developing A Taste For Not Being Discriminated Against, Mary Anne Case
Developing A Taste For Not Being Discriminated Against, Mary Anne Case
Public Law and Legal Theory Working Papers
No abstract provided.
Libertarian Paternalism Is Not An Oxymoron, Richard H. Thaler, Cass R. Sunstein
Libertarian Paternalism Is Not An Oxymoron, Richard H. Thaler, Cass R. Sunstein
Public Law and Legal Theory Working Papers
The idea of libertarian paternalism might seem to be an oxymoron, but it is both possible and legitimate for private and public institutions to affect behavior while also respecting freedom of choice. Often people’s preferences are ill-formed, and their choices will inevitably be influenced by default rules, framing effects, and starting points. In these circumstances, a form of paternalism cannot be avoided. Equipped with an understanding of behavioral findings of bounded rationality and bounded self-control, libertarian paternalists should attempt to steer people’s choices in welfare-promoting directions without eliminating freedom of choice. It is also possible to show how a libertarian …
Legislating Chevron, Elizabeth Garrett
Legislating Chevron, Elizabeth Garrett
Public Law and Legal Theory Working Papers
No abstract provided.
Transfer Regulations And Cost-Effectiveness Analysis, Eric A. Posner
Transfer Regulations And Cost-Effectiveness Analysis, Eric A. Posner
Public Law and Legal Theory Working Papers
Recent scholarship on regulatory oversight has focused on cost-benefit analysis of prescriptive regulations – regulations that restrict behavior such as pollution – and their use to cure market failures, and has overlooked the vast number of transfer regulations. Transfer regulations are regulations that channel funds to beneficiaries. These regulations are authorized by statutes that establish entitlement programs like Medicare and Social Security, pay one-time distributions to victims of misfortunes such as natural disasters and the 9/11 terrorist attack, and fund pork barrel spending. Cost-benefit analysis cannot be used to evaluate transfer regulations because all transfer regulations fail cost-benefit analysis, but …
Children's Associational Rights? Why Less Is More, Emily Buss
Children's Associational Rights? Why Less Is More, Emily Buss
Public Law and Legal Theory Working Papers
No abstract provided.
The Speech Enhancing Effect Of Internet Regulation, Emily Buss
The Speech Enhancing Effect Of Internet Regulation, Emily Buss
Public Law and Legal Theory Working Papers
No abstract provided.
Transitional Justice As Ordinary Justice, Eric A. Posner, Adrian Vermeule
Transitional Justice As Ordinary Justice, Eric A. Posner, Adrian Vermeule
Public Law and Legal Theory Working Papers
No abstract provided.
The Constitutional Law Of Congressional Procedure, Adrian Vermeule
The Constitutional Law Of Congressional Procedure, Adrian Vermeule
Public Law and Legal Theory Working Papers
No abstract provided.
Beyond The Precautionary Principle, Cass R. Sunstein
Beyond The Precautionary Principle, Cass R. Sunstein
Public Law and Legal Theory Working Papers
The precautionary principle has been highly influential in legal systems all over the world. In its strongest and most distinctive forms, the principle imposes a burden of proof on those who create potential risks, and it requires regulation of activities even if it cannot be shown that those activities are likely to produce significant harms. Taken in this strong form, the precautionary principle should be rejected, not because it leads in bad directions, but because it leads in no directions at all. The principle is literally paralyzing— forbidding inaction, stringent regulation, and everything in between. The reason is that in …
Mead In The Trenches, Adrian Vermeule
Mead In The Trenches, Adrian Vermeule
Public Law and Legal Theory Working Papers
No abstract provided.
Why Does The American Constitution Lack Social And Economic Guarantees?, Cass R. Sunstein
Why Does The American Constitution Lack Social And Economic Guarantees?, Cass R. Sunstein
Public Law and Legal Theory Working Papers
Why does the American Constitution lack contain social and economic guarantees, which appear in most contemporary constitutions? This essay explores four possible answers: chronological, cultural, institutional, and realist. The chronological explanation emphasizes the fact that in the late eighteenth century, social and economic rights simply were not on the viewscreen for constitution-makers. The point is correct, but as a complete account, the chronological explanation fails for the simple reason that constitutional meaning changes over time. The institutional explanation emphasizes that Americans typically see constitutional rights not as mere goals or aspirations, but as pragmatic instruments for judicial enforcement. The difficulty …