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Full-Text Articles in Law
Overreaction To Fearsome Risks, Cass R. Sunstein, Richard Zeckhauser
Overreaction To Fearsome Risks, Cass R. Sunstein, Richard Zeckhauser
Public Law and Legal Theory Working Papers
Fearsome risks are those that stimulate strong emotional responses. Such risks, which usually involve high consequences, tend to have low probabilities, since life today is no longer nasty, brutish and short. In the face of a low-probability fearsome risk, people often exaggerate the benefits of preventive, risk-reducing, or ameliorative measures. In both personal life and politics, the result is damaging overreactions to risks. We offer evidence for the phenomenon of probability neglect, failing to distinguish between high and low-probability risks. Action bias is a likely result.
Adjusting Alienability, Lee Anne Fennell
Adjusting Alienability, Lee Anne Fennell
Public Law and Legal Theory Working Papers
No abstract provided.
Behavioral Criminal Law And Economics, Thomas S. Ulen, Richard H. Mcadams
Behavioral Criminal Law And Economics, Thomas S. Ulen, Richard H. Mcadams
Public Law and Legal Theory Working Papers
A behavioral economics literature identifies how behaviorally-derived assumptions affect the economic analysis of criminal law and public law enforcement. We review and extend that literature. Specifically, we consider the effect of cognitive biases, prospect theory, hedonic adaptation, hyperbolic discounting, fairness preferences, and other deviations from standard economic assumptions on the optimal rules for deterring potential offenders and for regulating (or motivating) potential crime victims, legislators, police, prosecutors, judges, and juries.
Constitutional Afterlife: The Continuing Impact Of Thailand’S Post-Political Constitution, Tom Ginsburg
Constitutional Afterlife: The Continuing Impact Of Thailand’S Post-Political Constitution, Tom Ginsburg
Public Law and Legal Theory Working Papers
Thailand’s constitution of 1997 introduced profound changes into the country’s governance, creating a “postpolitical” democratic structure in which an intricate array of guardian institutions served to limit the role of elected politicians. Ultimately, the constitutional structure was undermined in a military coup against populist billionaire Thaksin Shinawatra, who had taken over many of the institutions designed to constrain political power. Nonetheless, the 1997 constitution appears to be having a significant afterlife, in that its institutional innovations have survived the enactment of a new Constitution and continue to constrain the political process. This article describes the Thai situation and speculates on …
Crisis Governance In The Administrative State: 9/11 And The Financial Meltdown Of 2008, Eric A. Posner, Adrian Vermeule
Crisis Governance In The Administrative State: 9/11 And The Financial Meltdown Of 2008, Eric A. Posner, Adrian Vermeule
Public Law and Legal Theory Working Papers
No abstract provided.
Guarding The Guardians: Judicial Councils And Judicial Independence, Nuno Garoupa, Tom Ginsburg
Guarding The Guardians: Judicial Councils And Judicial Independence, Nuno Garoupa, Tom Ginsburg
Public Law and Legal Theory Working Papers
This Article uses comparative evidence to inform the ongoing debate about the selection and discipline of judges. In recent decades, many countries around the world have created judicial councils, institutions designed to maintain an appropriate balance between judicial independence and accountability. Our Article has two aims. First, we provide a theory of the formation of judicial councils and identify some of the dimensions along which they differ. Second, we test the extent to which different designs of judicial council affect judicial quality. We find that there is little relationship between councils and quality. We also offer a positive explanation for …
Judging National Security Post-9/11: An Empirical Investigation, Cass R. Sunstein
Judging National Security Post-9/11: An Empirical Investigation, Cass R. Sunstein
Public Law and Legal Theory Working Papers
Many people believe that when national security is threatened, federal courts should defer to the government. Many other people believe that in times of crisis, citizens are vulnerable to a kind of “panic” that leads to unjustified intrusions on liberty. But to date, there is little information about what federal courts have actually done in this domain, especially in the period after the attacks of September 11, 2001. On the basis of a comprehensive study of relevant courts of appeals decisions in the aftermath of those attacks, this essay offers four findings. First, the invalidation rate is about 15 percent …
Naturalizing Jurisprudence: Three Approaches, Brian Leiter
Naturalizing Jurisprudence: Three Approaches, Brian Leiter
Public Law and Legal Theory Working Papers
No abstract provided.
Originalism's Expiration Date, Adam M. Samaha
Originalism's Expiration Date, Adam M. Samaha
Public Law and Legal Theory Working Papers
The Constitution of the United States declares itself supreme law, but even the amended document is ancient. By 2008, the predicted age of a randomly selected word in this text reached 178 years. The judiciary, for its part, might not interpret the text until decades after ratification. For Article V amendments, the average lag between ratification and Supreme Court interpretation has been about 40 years. The question is how these features of our supreme law might influence the choice of interpretive method and, ultimately, constitutional decision-making. In particular, some scholars indicate that originalism may be a strong force in adjudication …
The Clash Of Commitments At The International Criminal Court, Tom Ginsburg
The Clash Of Commitments At The International Criminal Court, Tom Ginsburg
Public Law and Legal Theory Working Papers
No abstract provided.
Belief In A Just World, Blaming The Victim, And Hate Crime Statutes, Dhammika Dharmapala, Nuno Garoupa, Richard H. Mcadams
Belief In A Just World, Blaming The Victim, And Hate Crime Statutes, Dhammika Dharmapala, Nuno Garoupa, Richard H. Mcadams
Public Law and Legal Theory Working Papers
The earliest economic theory of discrimination proposed the subsequently neglected idea of a "vicious circle" of discrimination (Myrdal, 1944). We draw on psychological evidence (that people derive utility from believing that the world is just) to propose a behavioral economic model in which the vicious circle envisaged by Myrdal can arise. We demonstrate the power of this approach through an application to the issue of whether and how to justify penalty enhancements for hate crimes against members of disfavored groups. The crucial assumption is that individuals engage in biased inference in order to preserve their Belief in a Just World, …
Beyond The Prisoner's Dilemma: Coordination, Game Theory, And The Law, Richard H. Mcadams
Beyond The Prisoner's Dilemma: Coordination, Game Theory, And The Law, Richard H. Mcadams
Public Law and Legal Theory Working Papers
No abstract provided.
The Political Economy Of Criminal Law And Procedure: The Pessimists' View, Richard H. Mcadams
The Political Economy Of Criminal Law And Procedure: The Pessimists' View, Richard H. Mcadams
Public Law and Legal Theory Working Papers
In The Pathological Politics of Criminal Law, Bill Stuntz provides a powerful critique of the modern American criminal justice system. Other commentators have criticized legislatures for constantly adding to an already overbroad set of criminal prohibitions. Stuntz explains the political dynamic that makes this outcome inevitable. The ultimate result is that the modern prosecutor defines what is criminal by her selection of cases to charge, while criminal legislation is a mere “side-show.” Stuntz concludes that this state of affairs is “lawless” and pathological. As a solution, he proposes that courts resurrect or expand certain constitutional doctrines to reclaim some of …
Abolition In The U.S.A. By 2050: On Political Capital And Ordniary Acts Of Resistance, Bernard E. Harcourt
Abolition In The U.S.A. By 2050: On Political Capital And Ordniary Acts Of Resistance, Bernard E. Harcourt
Public Law and Legal Theory Working Papers
The United States, like the larger international community, likely will tend toward greater abolition of the death penalty during the first half of the twenty-first century. A handful of individual states—states that have historically carried out few or no executions—probably will abolish capital punishment over the next twenty years, which will create political momentum and ultimately a federal constitutional ban on capital punishment in the United States. It is entirely reasonable to expect that, by the mid-twenty-first century, capital punishment will have the same status internationally as torture: an outlier practice, prohibited by international agreements and customary international law, practiced …
Beyond Judicial Minimalism, Cass R. Sunstein
Beyond Judicial Minimalism, Cass R. Sunstein
Public Law and Legal Theory Working Papers
Many judges are minimalists. They favor rulings that are narrow, in the sense that they govern only the circumstances of the particular case, and also shallow, in the sense that they do not accept a deep theory of the legal provision at issue. In law, narrow and shallow decisions have real advantages insofar as they reduce both decision costs and error costs; make space for democratic engagement on fundamental questions; and reflect a norm of civic respect. In many cases, however, minimalism is hard to justify in these ways. Sometimes small steps increase the aggregate costs of decisions; sometimes they …
Neoliberal Penality: The Birth Of Natural Order, The Illusion Of Free Markets, Bernard E. Harcourt
Neoliberal Penality: The Birth Of Natural Order, The Illusion Of Free Markets, Bernard E. Harcourt
Public Law and Legal Theory Working Papers
The major function of criminal law in a capitalist society is to prevent people from bypassing the system of voluntary, compensated exchange—the “market,” explicit or implicit—in situations where, because transaction costs are low, the market is a more efficient method of allocating resources than forced exchange… When transaction costs are low, the market is, virtually by definition, the most efficient method of allocating resources. Attempts to bypass the market will therefore be discouraged by a legal system bent on promoting efficiency.
Nietzsche's Naturalism Reconsidered, Brian Leiter
Nietzsche's Naturalism Reconsidered, Brian Leiter
Public Law and Legal Theory Working Papers
No abstract provided.
Optimal Remedies For Patent Infringement: A Transactional Model, Paul J. Heald
Optimal Remedies For Patent Infringement: A Transactional Model, Paul J. Heald
Public Law and Legal Theory Working Papers
In a world of zero transaction costs, one should observe optimal invention and innovation. As long as a system of enforceable contracts were in place, firms with inventive capacity and firms requiring inventions would negotiate for the optimal production of new creations. With adequate information, an observer could accurately predict which transactions would occur between firms and which transactions would not, thereby permitting description of the conditions for optimal inventiveness. Patent remedies in a world with transactions costs can be calibrated so that real firms behave as ideal firms, providing incentives for real world transactions to mimic those in a …
Privatizing Trademarks, Irina Manta
Privatizing Trademarks, Irina Manta
Public Law and Legal Theory Working Papers
While trademarks are designed to promote a competitive and productive marketplace, the current system of trademark registration is run by the Patent & Trademark Office as a monopoly of questionable productivity. The average time that it takes for the Patent & Trademark Office to process a trademark application is fifteen months, and even registrations that do not encounter legal issues can require a year. As a result, trademark applicants risk investing substantial sums of money into a mark to discover much later that the Patent & Trademark Office will not register it. This Article considers a possible solution - a …
Supposons Que La Discipline Et La Securite N'Existent Pas~ Rereading Foucault's College De France Lectures, Bernard E. Harcourt, Paul Veyne
Supposons Que La Discipline Et La Securite N'Existent Pas~ Rereading Foucault's College De France Lectures, Bernard E. Harcourt, Paul Veyne
Public Law and Legal Theory Working Papers
No abstract provided.
Testing The Over- And Under-Exploitation Hypothesis: Bestselling Musical Compositions (1913-32) And Their Use In Cinema (1968-2007), Paul J. Heald
Testing The Over- And Under-Exploitation Hypothesis: Bestselling Musical Compositions (1913-32) And Their Use In Cinema (1968-2007), Paul J. Heald
Public Law and Legal Theory Working Papers
Some economists assert that as valuable works transition from copyrighted status and fall into the public domain they will be underexploited and their value dissipated. Others insist instead that without an owner to control their use, valuable public domain works will be overexploited or otherwise debased. This study of the most valuable musical compositions from 1913-32 demonstrates that neither hypothesis is true as it applies to the exploitation of songs in movies from 1968-2007. When compositions fall into the public domain, they are just as likely to be exploited in movies, suggesting no under-exploitation. And the rate of exploitation of …
Second Amendment Minimalism: Heller As Griswold, Cass R. Sunstein
Second Amendment Minimalism: Heller As Griswold, Cass R. Sunstein
Public Law and Legal Theory Working Papers
The Court’s decision in District of Columbia v. Heller might be taken in three different ways. First, it might be seen as a modern version of Marbury v. Madison, speaking neutrally for the text, structure, and original understanding of the Constitution. Second, it might be seen as analogous to Lochner v. New York, in which a majority of the Court invoked a dubious understanding of the Constitution in order to override the democratic will. Third, it might be taken as analogous to Griswold v. Connecticut, in which a majority of the Court, proceeding in minimalist fashion, used the Constitution to …
A Nation Divided: Eastern China, Western China, And The Problem Of Global Warming, Daniel Abebe, Jonathan Masur
A Nation Divided: Eastern China, Western China, And The Problem Of Global Warming, Daniel Abebe, Jonathan Masur
Public Law and Legal Theory Working Papers
No abstract provided.
Boumediene And The Uncertain March Of Judicial Cosmopolitanism, Eric A. Posner
Boumediene And The Uncertain March Of Judicial Cosmopolitanism, Eric A. Posner
Public Law and Legal Theory Working Papers
In Boumediene v. Bush, the Supreme Court held that noncitizens detained at Guantanamo Bay have the constitutional privilege of habeas corpus. The case can be given multiple interpretations, including a narrow reading under which it follows straightforwardly from Eisentrager. But Justice Kennedy's majority opinion omits consideration of a factor that plays a role in Eisentrager, namely, the limited constitutional status of the noncitizen. For this reason, the most distinctive element of Justice Kennedy's reasoning is its cosmopolitanism, not its libertarianism. The cosmopolitan elements of Boumediene recall the debate about the use of foreign law to interpret provisions of the U.S. …
Happiness And Punishment, John Bronsteen, Christopher Buccafusco, Jonathan Masur
Happiness And Punishment, John Bronsteen, Christopher Buccafusco, Jonathan Masur
Public Law and Legal Theory Working Papers
No abstract provided.
Judicial Ideology And The Transformation Of Voting Rights Jurisprudence, Thomas J. Miles, Adam B. Cox
Judicial Ideology And The Transformation Of Voting Rights Jurisprudence, Thomas J. Miles, Adam B. Cox
Public Law and Legal Theory Working Papers
For two decades, the doctrinal test laid out in Thornburg v Gingles has been the centerpiece of vote dilution litigation in the United States. Gingles defined a sequential, two-part framework combining a set of rule-like preconditions to liability with a standard-like inquiry into the totality of the circumstances. Despite this elaborate framework, emerging empirical work shows that political ideology connects closely with how judges have decided vote dilution cases; Democratic appointees have proven much more likely than Republican appointees to favor liability under Section 2 of the Voting Rights Act. This work raises the question of what role the Gingles …
The Majority That Wasn't: Stare Decisis, Majority Rule And The Mischief Of Quorum Requirements, Jonathan Remy Nash
The Majority That Wasn't: Stare Decisis, Majority Rule And The Mischief Of Quorum Requirements, Jonathan Remy Nash
Public Law and Legal Theory Working Papers
In this Paper, I consider the question of precedential value in settings in which a case is decided by a majority of judges hearing a case but less than a majority of judges authorized to decide the case—a situation I refer to as a “minority majority.” In analyzing the question of treatment of minority majorities, the Paper makes three broad contributions to the literature. First, it disaggregates the requirements that undergird the notion that a Court opinion receive precedential effect into three categories: quorum requirements, action requirements, and voting rule requirements. The Paper’s second broad contribution is its normative analysis …
Trimming, Cass R. Sunstein
Trimming, Cass R. Sunstein
Public Law and Legal Theory Working Papers
In law and politics, some people are trimmers. They attempt to steer between the poles. Trimming might be defended as a heuristic for what is right, as a means of reducing political conflict over especially controversial questions, or as a method of ensuring that people who hold competing positions are not humiliated, excluded, or hurt. There are two kinds of trimmers: compromisers, who follow a kind of “trimming heuristic” and thus conclude that the middle course is best; and preservers, who attempt to preserve what is deepest in and most essential to competing reasonable positions, which they are willing to …
Erga Omnes Norms, Institutionalization, And Constitutionalism In International Law, Eric A. Posner
Erga Omnes Norms, Institutionalization, And Constitutionalism In International Law, Eric A. Posner
Public Law and Legal Theory Working Papers
Erga omnes norms are those that give third-party states, rather than just the victim, legal claims against states that violate them. This paper argues that ordinary two party norms arise when states recognize that a norm violation injures only one state and that other states that seek to retaliate on that state’s behalf are likely using the violation as a pretext for predatory behavior. Erga omnes norms arise when states recognize that a norm violation injures multiple states and that states have an incentive to free ride rather than retaliate against the violator. Erga omnes norms reduce the incentive to …
Taxes And The Success Of Non-Tax Market-Based Environmental Regulatory Regimes, Jonathan Remy Nash
Taxes And The Success Of Non-Tax Market-Based Environmental Regulatory Regimes, Jonathan Remy Nash
Public Law and Legal Theory Working Papers
No abstract provided.