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Full-Text Articles in Law
Economic Efficiency Versus Public Choice: The Case Of Property Rights In Road Traffic Management, Jonathan Remy Nash
Economic Efficiency Versus Public Choice: The Case Of Property Rights In Road Traffic Management, Jonathan Remy Nash
Public Law and Legal Theory Working Papers
This Article argues, using the case of responses to traffic congestion, that public choice provides a greater explanation for the emergence of property rights than does economic efficiency. While the traditional solution to traffic congestion is to provide new roadway capacity, that is not an efficient response in that it does not lead to internalization of costs. Moreover, over time new capacity may serve to exacerbate congestion problems: New roadway capacity may induce additional travel that would not have taken place but for the new construction. By contrast, congestion charges—that is, imposing tolls designed to force drivers to internalize the …
Extremism And Social Learning, Cass R. Sunstein, Edward L. Glaeser
Extremism And Social Learning, Cass R. Sunstein, Edward L. Glaeser
Public Law and Legal Theory Working Papers
When members of deliberating groups speak with one another, their predeliberation tendencies often become exacerbated as their views become more extreme. The resulting phenomenon—group polarization—has been observed in many settings, and it bears on the actions of juries, administrative tribunals, corporate boards, and other institutions. Polarization can result from rational Bayesian updating by group members, but in many contexts, this rational interpretation of polarization seems implausible. We argue that people are better seen as Credulous Bayesians, who insufficiently adjust for idiosyncratic features of particular environments and put excessive weight on the statements of others where there are 1) common sources …
The New Legal Realism, Cass R. Sunstein, Thomas J. Miles
The New Legal Realism, Cass R. Sunstein, Thomas J. Miles
Public Law and Legal Theory Working Papers
The last decade has witnessed the birth of the New Legal Realism—an effort to go beyond the old realism by testing competing hypotheses about the role of law and politics in judicial decisions, with reference to large sets and statistical analysis. The New Legal Realists have uncovered a Standard Model of Judicial Behavior, demonstrating significant differences between Republican appointees and Democratic appointees, and showing that such differences can be diminished or heightened by panel composition. The New Legal Realists have also started to find that race, sex, and other demographic characteristics sometimes have effects on judicial judgments. At the same …
Economic Costs Of Inequality, Richard H. Mcadams
Economic Costs Of Inequality, Richard H. Mcadams
Public Law and Legal Theory Working Papers
This brief chapter surveys some of the economic literature concerning the instrumental costs of material inequality. Economic theory predicts, and econometric evidence finds, that inequality increases crime and political corruption and, in certain circumstances, constrains growth.
Reputation Nation: Law In An Era Of Ubiquitous Personal Information, Lior Strahilevitz
Reputation Nation: Law In An Era Of Ubiquitous Personal Information, Lior Strahilevitz
Public Law and Legal Theory Working Papers
No abstract provided.
The Real World Of Arbitrariness Review, Thomas J. Miles
The Real World Of Arbitrariness Review, Thomas J. Miles
Public Law and Legal Theory Working Papers
The Administrative Procedure Act instructs federal courts to invalidate agency decisions that are “arbitrary” or “capricious.” In its 1983 decision in the State Farm case, the Supreme Court firmly endorsed the idea that arbitrariness review requires courts to take a “hard look” at agency decisions. The hard look doctrine has been defended as a second-best substitute for insistence on the original constitutional safeguards; close judicial scrutiny is said to discipline agency decisions and to constrain the illegitimate exercise of discretion. In the last two decades, however, hard look review has been challenged on the plausible but admittedly speculative ground that …
An Empirical Investigation Into Appellate Structure And The Perceived Quality Of Appellate Review, Jonathan Remy Nash
An Empirical Investigation Into Appellate Structure And The Perceived Quality Of Appellate Review, Jonathan Remy Nash
Public Law and Legal Theory Working Papers
No abstract provided.
Availability Cascades And Risk Regulation, Timur Kuran
Availability Cascades And Risk Regulation, Timur Kuran
Public Law and Legal Theory Working Papers
An availability cascade is a self-reinforcing process of collective belief formation by which an expressed perception triggers a chain reaction that gives the perception increasing plausibility through its rising availability in public discourse. The driving mechanism involves a combination of informational and reputational motives: Individuals endorse the perception partly by learning from the apparent beliefs of others and partly by distorting their public responses in the interest of maintaining social acceptance. Availability entrepreneurs-- activists who manipulate the content of public discourse-strive to trigger availability cascades likely to advance their agendas. Their availability campaigns may yield social benefits, but sometimes they …
Event Jurisdiction And Protective Coordination: Lessons From September 11th Litigation, Robin Effron
Event Jurisdiction And Protective Coordination: Lessons From September 11th Litigation, Robin Effron
Public Law and Legal Theory Working Papers
Shortly after the tragic events of September 11, 2001, Congress passed the Air Transportation Safety and System Stabilization Act (ATSSSA). The September 11th Victim Compensation Fund (VCF) was the centerpiece of the statute and provided a source of no-fault compensation to the tragedy’s victims and victims’ families. The ATSSSA also allowed victims to elect to pursue traditional litigation instead. The ATSSSA contains three jurisdictional features that have shaped the path of the litigation. The Act created a federal cause of action “for damages arising out of” the terrorist related aircraft crashes; it gave the Southern District of New York original …
From 'Seriatim' To Consensus And Back Again: A Theory Of Dissent, M. Todd Henderson
From 'Seriatim' To Consensus And Back Again: A Theory Of Dissent, M. Todd Henderson
Public Law and Legal Theory Working Papers
No abstract provided.
Causation In Tort: General Populations Vs. Individual Cases, Cass R. Sunstein, William Meadow
Causation In Tort: General Populations Vs. Individual Cases, Cass R. Sunstein, William Meadow
Public Law and Legal Theory Working Papers
To establish causation, a tort plaintiff must show that it is “more probable than not” that the harm would not have occurred if the defendant had followed the relevant standard of care. Statistical evidence, based on aggregate data, is sometimes introduced to show that the defendant’s conduct created a statistically significant increase in the likelihood that the harm would occur. But there is a serious problem with the use of such evidence: It does not establish that in the particular case, the injury was more likely than not to have occurred because the defendant behaved negligently. Under existing doctrine, a …
Demystifying The Right To Exclude: Of Property, Inviolability, And Automatic Injunctions, Shyam Balganesh
Demystifying The Right To Exclude: Of Property, Inviolability, And Automatic Injunctions, Shyam Balganesh
Public Law and Legal Theory Working Papers
The right to exclude has for long been considered a central component of property. In focusing on the element of exclusion, courts and scholars have paid little attention to what it means for an owner to have a 'right' to exclude and the forms in which this right might manifest itself in actual property practice. For some time now, the right to exclude has come to be understood as nothing but an entitlement to injunctive relief —that whenever an owner successfully establishes title and an interference with the same, an injunction will automatically follow. This view attributes to the right …
Reforming Entrapment Doctrine In United States V. Hollingsworth, Richard H. Mcadams
Reforming Entrapment Doctrine In United States V. Hollingsworth, Richard H. Mcadams
Public Law and Legal Theory Working Papers
This short essay, written for a symposium commemorating Richard Posner's twenty-fifth year as a judge, examines Judge Posner's majority opinion for a closely divided en banc decision on the federal entrapment defense. The cases considers a fundamental issue in the meaning of the element of "predisposition." Judge Posner crafts a boldly innovative reading of the Supreme Court precedent on the topic, introducing the element of "position" or "readiness" to predisposition. I claim the result, properly understood, is to rationalize the doctrine of entrapment.
The Complex Climate Change Incentives Of China And The United States, Cass R. Sunstein
The Complex Climate Change Incentives Of China And The United States, Cass R. Sunstein
Public Law and Legal Theory Working Papers
It is increasingly clear that the world would be better off with an international agreement to control greenhouse gas emissions. What remains poorly understood is that the likely costs and benefits of emissions controls are highly variable across nations. Most important, prominent projection suggest that the world’s leading emitters--the United States and China—have weak incentives to participate in an agreement that would be optimal from the standpoint of the world. The first problem is that any significant emissions effort would probably be exceedingly expensive for both nations. The second problem is that on prominent projections, the United States and China …
A Reader's Companion To 'Against Protection', Bernard E. Harcourt
A Reader's Companion To 'Against Protection', Bernard E. Harcourt
Public Law and Legal Theory Working Papers
From parole prediction instruments and violent sexual predator scores to racial profiling on the highways, instruments to predict future dangerousness, drug-courier profiles, and IRS computer algorithms to detect tax evaders, the rise of actuarial methods in the field of crime and punishment presents a number of challenging issues at the intersection of economic theory, sociology, history, race studies, criminology, social theory, and law. The three review articles of Against Prediction: Profiling, Policing, and Punishing in an Actuarial Age by Ariela Gross, Yoram Margalioth, and Yoav Sapir, raise these challenges in their very best light. Ranging from the heights of poststructuralist …
Climate Change Justice, Cass R. Sunstein, Eric A. Posner
Climate Change Justice, Cass R. Sunstein, Eric A. Posner
Public Law and Legal Theory Working Papers
Greenhouse gas reductions would cost some nations much more than others, and benefit some nations far less than others. Significant reductions would impose especially large costs on the United States, and recent projections suggest that the United States has relatively less to lose from climate change. In these circumstances, what does justice require the United States to do? Many people believe that the United States is required to reduce its greenhouse gas emissions beyond the point that is justified by its own self-interest, simply because the United States is wealthy, and because the nations most at risk from climate change …
Standing And The Precautionary Principle, Jonathan Remy Nash
Standing And The Precautionary Principle, Jonathan Remy Nash
Public Law and Legal Theory Working Papers
In Massachusetts v. EPA, the Supreme Court upheld Massachusetts’ standing to challenge EPA’s refusal to regulate greenhouse gas emissions from mobile sources. The majority and dissent disputed whether the science of global warming was sufficient to establish standing. Absent from both opinions was discussion of whether there would be standing if the science were uncertain but the potential harms large and irreversible. This Essay argues that “precautionary-based standing”—grounded upon a fundamental principle of environmental law, the precautionary principle—should apply in such cases. Precautionary-based standing would not upset existing standing doctrine. First, its application would be limited, and could further be …
Constitutional Showdowns, Eric A. Posner, Adrian Vermeule
Constitutional Showdowns, Eric A. Posner, Adrian Vermeule
Public Law and Legal Theory Working Papers
No abstract provided.
Illusory Losses, Cass R. Sunstein
Illusory Losses, Cass R. Sunstein
Public Law and Legal Theory Working Papers
Recent empirical work demonstrates that people’s self-reported happiness is surprisingly resilient to many large changes in life conditions; apparently significant adverse events and conditions often inflict little or no hedonic damage. People with disabilities—such as those on dialysis, with lost limbs, or with colostomies—appear to show the same level of happiness or life-satisfaction as people without disabilities. The reason for these results is people’s power of adaptation. Adaptation has several sources, but it is often a product of attention: Most of the time, people go about their lives without attending to, or focusing on, adverse conditions, and hence those conditions …
Indignation: Psychology, Politics, Law, Daniel Kahneman
Indignation: Psychology, Politics, Law, Daniel Kahneman
Public Law and Legal Theory Working Papers
Moral intuitions operate in much the same way as other intuitions do; what makes the moral domain is distinctive is its foundations in the emotions, beliefs, and response tendencies that define indignation. The intuitive system of cognition, System I, is typically responsible for indignation; the more reflective system, System II, may or may not provide an override. Moral dumbfounding and moral numbness are often a product of moral intuitions that people are unable to justify. An understanding of indignation helps to explain the operation of the many phenomena of interest to law and politics: the outrage heuristic, the centrality of …
Privacy Versus Antidiscrimination, Lior Strahilevitz
Privacy Versus Antidiscrimination, Lior Strahilevitz
Public Law and Legal Theory Working Papers
This essay argues that there is often an essential conflict between information privacy protections and antidiscrimination principles. Where information privacy law or practical obscurity deprives an employer of pertinent information about a job applicant, the employer often will rely more heavily on distasteful statistical discrimination strategies. For example, the existing empirical evidence suggests that criminal background checks may benefit African American male job applicants as a whole, by permitting employers to sort among ex-cons and those lacking criminal records. In the absence of accurate criminal history information, employers concerned about keeping ex-offenders out of their workplace appear to hire too …
Timing Rules And Legal Institutions, Eric A. Posner, Jacob Gersen
Timing Rules And Legal Institutions, Eric A. Posner, Jacob Gersen
Public Law and Legal Theory Working Papers
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 …
Grassroots Plea Bargaining, Josh Bowers
Grassroots Plea Bargaining, Josh Bowers
Public Law and Legal Theory Working Papers
In the 1990s, New York City implemented a particularly vigorous brand of localized order-maintenance policing. Such targeted enforcement of “borderline” offenses led to a skyrocketing rate of non-felony arrests in affected (predominantly poor and minority) communities and, consequently, created a crisis of systemic legitimacy within these communities. Notably, however, enforcement was increasingly heavy-handed only on the policing end. By contrast, when it came to plea bargaining, prosecutors were providing more and more lenient no-time or short-time pleas to reduced (often non-criminal) charges. In this essay, I offer a novel (and at least partial) explanation for this leniency trend. My explanation …
Judging The Voting Rights Act, Adam B. Cox
Judging The Voting Rights Act, Adam B. Cox
Public Law and Legal Theory Working Papers
The Voting Rights Act has radically altered the political status of minority voters and dramatically transformed the partisan structure of American politics. Given the political and racial salience of cases brought under the Act, it is surprising that the growing literature on the effects of a judge’s ideology and race on judicial decisionmaking has overlooked these cases. This Article provides the first systematic evidence that judicial ideology and race are closely related to findings of liability in voting rights cases. Democratic appointees are significantly more likely than Republican appointees to vote for liability under section 2 of the Voting Rights …
Legislative Rules Revisited, Jacob Gersen
Legislative Rules Revisited, Jacob Gersen
Public Law and Legal Theory Working Papers
No abstract provided.
On The Tension Between Sex Equality And Religious Freedom, Cass R. Sunstein
On The Tension Between Sex Equality And Religious Freedom, Cass R. Sunstein
Public Law and Legal Theory Working Papers
When, if ever, is it legitimate for law to ban sex discrimination by religious institutions? It is best to approach this question by noticing that most of the time, ordinary civil and criminal law are legitimately applied to such institutions. For example, members of religious organizations cannot commit torts, even if the commission of torts is said to be part of their religious practices. Many people seem to accept what might be called an Asymmetry Thesis, which holds that sex equality principles may not be applied to religious institutions, whereas ordinary civil and criminal law may indeed be applied to …
What Good Is The Social Model Of Disability?, Adam M. Samaha
What Good Is The Social Model Of Disability?, Adam M. Samaha
Public Law and Legal Theory Working Papers
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 …
Punishing The Innocent, Josh Bowers
Punishing The Innocent, Josh Bowers
Public Law and Legal Theory Working Papers
Scholars highlight an “innocence problem” as one of plea bargaining’s chief failures. Their concerns, however, are misguided. In fact, many innocent defendants are far better off in a world with plea bargaining than without. Plea bargaining is not the cause of wrongful punishment. Rather, inaccurate guilty pleas are merely symptomatic of errors at the points of arrest, charge, and/or trial. Much of the worry over an innocence problem proceeds from misperceptions over (i) the characteristics of typical innocent defendants, (ii) the types of cases they generally face, and (iii) the level of due process they ordinarily desire. In reality, most …
Apprendi’S Domain, Jonathan F. Mitchell
Apprendi’S Domain, Jonathan F. Mitchell
Public Law and Legal Theory Working Papers
No abstract provided.
Can The Income Tax Be Saved? The Promise And Pitfalls Of Unitary Formulary Apportionment, Julie Roin
Can The Income Tax Be Saved? The Promise And Pitfalls Of Unitary Formulary Apportionment, Julie Roin
Public Law and Legal Theory Working Papers
No abstract provided.