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Full-Text Articles in Law
Unemployment And Regulatory Policy, Eric A. Posner, Jonathan Masur
Unemployment And Regulatory Policy, Eric A. Posner, Jonathan Masur
Public Law and Legal Theory Working Papers
No abstract provided.
The Methodology Of Legal Philosophy, Brian Leiter, Alex Langlinais
The Methodology Of Legal Philosophy, Brian Leiter, Alex Langlinais
Public Law and Legal Theory Working Papers
No abstract provided.
Becker On Ewald On Foucault On Becker American Neoliberalism And Michel Foucault's 1979 'Birth Of Biopolitics' Lectures, Gary S. Becker, François Ewald, Bernard E. Harcourt
Becker On Ewald On Foucault On Becker American Neoliberalism And Michel Foucault's 1979 'Birth Of Biopolitics' Lectures, Gary S. Becker, François Ewald, Bernard E. Harcourt
Public Law and Legal Theory Working Papers
No abstract provided.
Binding The Executive (By Law Or By Politics), Aziz Huq
Binding The Executive (By Law Or By Politics), Aziz Huq
Public Law and Legal Theory Working Papers
No abstract provided.
Reverse Regulatory Arbitrage: An Auction Approach To Regulatory Assignments, M. Todd Henderson, Frederick Tung
Reverse Regulatory Arbitrage: An Auction Approach To Regulatory Assignments, M. Todd Henderson, Frederick Tung
Public Law and Legal Theory Working Papers
In the years before the Financial Crisis, banks got to pick their regulators, engaging in a form of regulatory arbitrage that we now know was a race to the bottom. We propose to turn the tables on the banks by allowing regulators, specifically, bank examiners, to choose the banks they regulate. We call this “reverse regulatory arbitrage,” and we think it can help improve regulatory outcomes. Building on our prior work that proposes to pay bank examiners for performance—by giving them financial incentives to avoid bank failures—we argue that bank supervisory assignments should be set through an auction among examiners. …
Structural Constitutionalism As Counterterrorism, Aziz Huq
Structural Constitutionalism As Counterterrorism, Aziz Huq
Public Law and Legal Theory Working Papers
During the past decade, federal courts have adjudicated proliferating challenges to novel policy responses to terrorism. Judges often resolve the individual rights and statutory interpretation questions implicated in those controversies by deploying presumptions or rules of thumb derived from the Constitution’s Separation of Powers. These “structural constitutional presumptions” serve as heuristics to facilitate adjudication and to enable judicial bypass of difficult legal, policy, and factual questions. This Article challenges the use of such structural presumptions in counterterrorism cases. Drawing upon recent empirical research in political science, political psychology, and security studies, it demonstrates that abstract eighteenth-century Separation of Powers ideals …
International Law And The Limits Of Macroeconomic Cooperation, Alan O. Sykes, Eric A. Posner
International Law And The Limits Of Macroeconomic Cooperation, Alan O. Sykes, Eric A. Posner
Public Law and Legal Theory Working Papers
The macroeconomic policies of states can produce significant costs and benefits for other states, yet international macroeconomic cooperation has been one of the weakest areas of international law. We ask why states have had such trouble cooperating over macroeconomic issues, when they have been relatively successful at cooperation over other economic matters such as international trade. We argue that although the theoretical benefits of macroeconomic cooperation are real, in practice it is difficult to sustain because optimal cooperative policies are often uncertain and time variant, making it exceedingly difficult to craft clear rules for cooperation in many areas. It is …
Waldron On The Regulation Of Hate Speech, Brian Leiter
Waldron On The Regulation Of Hate Speech, Brian Leiter
Public Law and Legal Theory Working Papers
No abstract provided.
International Paretianism: A Defense, Eric A. Posner, David A. Weisbach
International Paretianism: A Defense, Eric A. Posner, David A. Weisbach
Public Law and Legal Theory Working Papers
A treaty satisfies what we call International Paretianism if it advances the interests of all states that join it, so that no state is made worse off. The principle might seem obvious, but it rules out nearly all the major proposals for a climate treaty, including proposals advanced by academics and by government officials. We defend International Paretianism, and for that reason urge commentators in the debate over climate justice to abandon efforts to right past wrongs, redistribute wealth, and achieve other abstract ideals through a climate treaty.
The Institution Matching Canon, Aziz Huq
The Institution Matching Canon, Aziz Huq
Public Law and Legal Theory Working Papers
This Article identifies and analyzes a transsubstantive tool of constitutional doctrine that to date has escaped scholarly attention. The Article terms this device the “institution matching” canon. It can be stated briefly as follows: When the government makes a decision that may impinge upon a liberty or equality interest—which may or may not be directly judicially enforced otherwise—a court should determine whether the component of government that made the decision has actual competence in and responsibility for the policy justifications invoked to curtail the interest. If not, the court should reject the government action but leave open the possibility of …
The Institutional Structure Of Immigration Law, Eric A. Posner
The Institutional Structure Of Immigration Law, Eric A. Posner
Public Law and Legal Theory Working Papers
Immigration law scholars should give more attention to the institutional structure of immigration law and, in particular, the way that the government addresses problems of asymmetric information in the course of screening potential migrants and attempting to control their behavior once they arrive. Economic models of optimal contracting provide a useful starting point for analyzing this problem. This approach is applied to several current debates in immigration scholarship, including controversies over “crimmigration” and courts’ refusal to extend labor and employment rights to undocumented aliens.
When Was Judicial Self-Restraint, Aziz Huq
When Was Judicial Self-Restraint, Aziz Huq
Public Law and Legal Theory Working Papers
This Essay responds to Judge Posner’s Jorde Symposium Essay The Rise and Fall of Judicial Restraint by analyzing the question of when, if ever, has judicial self-restraint thrived in the federal courts. Its central aim is to shed historicizing light on the trajectory of judicial activism by imaginatively rifling through an array of canonical and somewhat-less-than-canonical empirical identification strategies. Two conclusions follow from the inquiry. First, I find that the available data on the historical trajectory of judicial restraint are surprisingly poor, and it is necessary to offer any judgment about the historical path of judicial activism with great caution. …
Harmonization, Preferences, And The Calculus Of Consent In Commercial And Other Law, Saul Levmore
Harmonization, Preferences, And The Calculus Of Consent In Commercial And Other Law, Saul Levmore
Public Law and Legal Theory Working Papers
The European Union is exploring a move toward harmonization in the form of a common commercial code (CESL), with some mandatory provisions especially with respect to consumer law, but alsoincorporating a large dose of business-to-business law that would be optional at the enterprise, rather than jurisdictional, level. This paper begins with the question of when harmonization is preferable to diversity, and not just with respect to commercial law. It tackles the problem from the perspective of the median voters in jurisdictions, some of which have similar preferences and some not. It introduces the ability of a stable and like-minded group …
An Fda For Financial Innovation: Applying The Insurable Interest Doctrine To Twenty-First-Century Financial Markets, E. Glen Weyl, Eric A. Posner
An Fda For Financial Innovation: Applying The Insurable Interest Doctrine To Twenty-First-Century Financial Markets, E. Glen Weyl, Eric A. Posner
Public Law and Legal Theory Working Papers
The financial crisis of 2008 was caused in part by speculative investment in complex derivatives. In enacting the Dodd-Frank Act, Congress sought to address the problem of speculative investment, but merely transferred that authority to various agencies, which have not yet found a solution. We propose that when firms invent new financial products, they be forbidden to sell them until they receive approval from a government agency designed along the lines of the FDA, which screens pharmaceutical innovations. The agency would approve financial products if they satisfy a test for social utility that focuses on whether the product will likely …
Courts And New Democracies: Recent Works, Tom Ginsburg
Courts And New Democracies: Recent Works, Tom Ginsburg
Public Law and Legal Theory Working Papers
Recent literature on comparative judicial politics reveals a variety of roles that courts adopt in the process of democratization. These include, very rarely, serving as a trigger for democratization, and more commonly, serving as downstream guarantor for departing autocrats or as downstream consolidator of democracy. In light of these roles, this essay reviews six relatively recent books: Courts in Latin America, edited by Helmke and Rios-Figueroa (2011); Judges Beyond Politics in Democracy and Dictatorship: Lessons from Chile, by Hilbink (2007); Cultures of Legality: Judicialization and Political Activism in Latin America, edited by Couso, Huneeus and Sieder (2011); The Legacies of …
Deciding Not To Decide: Deferral In Constitutional Design, Rosalind Dixon, Tom Ginsburg
Deciding Not To Decide: Deferral In Constitutional Design, Rosalind Dixon, Tom Ginsburg
Public Law and Legal Theory Working Papers
In designing constitutions, constitutional drafters often face constraints that cause them to leave things “undecided”—or to defer decision-making on certain constitutional issues to the future. They do this both through adopting vague constitutional language, and through specific language that explicitly delegates issues to future legislators (i.e. “by law” clauses). The aim of this article is to deepen our understanding of this second, to date largely un-examined, tool of constitutional design. We do so by exploring: (1) the rationale for constitutional deferral generally; (2) the potential alternatives to “by law” clauses as a means of addressing concerns about constitutional “error” and …
Punitive Preventive Justice: A Critique, Bernard E. Harcourt
Punitive Preventive Justice: A Critique, Bernard E. Harcourt
Public Law and Legal Theory Working Papers
No abstract provided.
Children's Rights And A Capabilities Approach: The Question Of Special Priority, Martha Craven Nussbaum, Rosalind Dixon
Children's Rights And A Capabilities Approach: The Question Of Special Priority, Martha Craven Nussbaum, Rosalind Dixon
Public Law and Legal Theory Working Papers
The latter part of the twentieth century saw the near-universal recognition of the idea of children’s rights as human rights. At the same time, the conceptual basis for such rights remains largely under-theorized. Part of the aim of this Article is to draw on the insights of the “capabilities approach” developed by Martha Nussbaum in philosophy, and Amartya Sen in economics, in order to provide a fuller theoretical justification of this kind. In addition, this Article investigates the degree to which it will be justifiable, under such an approach, for international human rights law or national constitutions, to give special …
The Sex Side Of Civil Liberties: United States V. Dennett And The Changing Face Of Free Speech, Laura Weinrib
The Sex Side Of Civil Liberties: United States V. Dennett And The Changing Face Of Free Speech, Laura Weinrib
Public Law and Legal Theory Working Papers
No abstract provided.
Costly Intellectual Property, Jonathan Masur, David Fagundes
Costly Intellectual Property, Jonathan Masur, David Fagundes
Public Law and Legal Theory Working Papers
Though they derive from the same constitutional source of law, patents and copyrights vest very differently. Patents arise only after an applicant successfully navigates a cumbersome and expensive examination, while copyrights arise costlessly upon mere fixation of a work in a tangible medium of expression. Each of these vesting systems has drawn much criticism. Some scholars argue that the patent examination system imposes heavy costs while failing to eliminate invalid patents. Each of these claims, though, fails to take into account the social benefits (or costs) associated with the screening mechanism (or lack thereof) required for owners to perfect their …
Picturing Takings, Lee Anne Fennell
Picturing Takings, Lee Anne Fennell
Public Law and Legal Theory Working Papers
Takings doctrine, we are constantly reminded, is unclear to the point of incoherence. The task of finding our way through it has become more difficult, and yet more interesting, with the Supreme Court’s recent, inconclusive foray into the arena of judicial takings in Stop the Beach Renourishment. Following guideposts in Kelo, Lingle, and earlier cases, this essay uses a series of simple diagrams to examine how elements of takings jurisprudence fit together with each other and with other limits on governmental action. Visualizing takings in this manner yields surprising lessons for judicial takings and for takings law more generally.
Asymmetries And Incentives In Evidence Production, Saul Levmore, Ariel Porat
Asymmetries And Incentives In Evidence Production, Saul Levmore, Ariel Porat
Public Law and Legal Theory Working Papers
Legal rules severely restrict payments to fact witnesses, though the government can often offer plea bargains or other nonmonetary inducements to encourage testimony. This asymmetry is something of a puzzle, for most asymmetries in criminal law favor the defendant. The asymmetry seems to disappear where physical evidence is at issue, though most such evidence can be compelled and need not be purchased. Another asymmetry concerns advance payment for likely witnesses, as opposed to monetary inducements once the content of the required testimony is known. One goal of this Article is to understand the various asymmetries—monetary/nonmonetary, prosecution/defense, ex ante/ex post, and …
On The American Paradox Of Laissez Faire And Mass Incarceration, Bernard E. Harcourt
On The American Paradox Of Laissez Faire And Mass Incarceration, Bernard E. Harcourt
Public Law and Legal Theory Working Papers
In The Illusion of Free Markets (Harvard 2011), Professor Bernard Harcourt analyzes the evolution of a distinctly American paradox: in the country that has done the most to promote the idea of a hands-off government, we run the single largest prison complex in the entire world. Harcourt traces this paradox back to the eighteenth century and demonstrates how the presumption of government incompetence in economic affairs has been coupled with that of government legitimacy in the realm of policing and punishing. Harcourt shows how these linked presumptions have fueled the expansion of the carceral sphere in the nineteenth and twentieth …
Fantasies And Illusions: On Liberty, Order And Free Markets, Bernard E. Harcourt
Fantasies And Illusions: On Liberty, Order And Free Markets, Bernard E. Harcourt
Public Law and Legal Theory Working Papers
Critical thinkers have used various terms to describe the collective imaginary that has real effects on individuals, society, and politics. Freud used the term "einer Illusion" to characterize religious belief in his work, The Future of an Illusion, though many others in the psychoanalytic tradition would turn to the notion of fantasy. Marx sometimes used the term illusion and he notoriously deployed the optical illusion and the phantasmagoria in his famous discussion of commodity fetishism. (And Marx, of course, is the father of Ideologiekritic). Foucault at times used the language of fantasy and phantasms, in an early period deployed the …
Forum Choice For Terrorism Suspects, Aziz Huq
Forum Choice For Terrorism Suspects, Aziz Huq
Public Law and Legal Theory Working Papers
What forum should be used to adjudicate the status of persons suspected of involvement in terrorism? Recent clashes between Congress and the president as to whether the status of terrorism suspects should be determined via Article III courts or military commissions have revived the debate about this venue question. The problem is typically framed as a matter of legal doctrine, with statutory and doctrinal rules invoked as dispositive guides for sorting suspects into either civilian or military venues. This Article takes issue with the utility of that framing of the problem. It argues that the forum question can more profitably …
The Politics Of Incivility, Bernard E. Harcourt
The Politics Of Incivility, Bernard E. Harcourt
Public Law and Legal Theory Working Papers
The Flemish painter, Pieter Bruegel, portrayed in his artwork men relieving themselves, cripples begging, and peasants toiling—as well as butchery and the gallows. In his masterful work, The Civilizing Process, Norbert Elias revealed how the “late medieval upper class” had not yet demanded, as later generations would, that “everything vulgar should be suppressed from life and therefore from pictures.” For centuries now, defining incivility has been intimately connected with social rank, class status, political hierarchy, and relations of power. The ability to identify and sanction incivility has been associated with positions of political privilege—and simultaneously has constituted and reinforced political …
When To Overthrow Your Government: The Right To Resist In The World's Constitutions, Tom Ginsburg, Daniel Lansberg-Rodriguez, Mila Versteeg
When To Overthrow Your Government: The Right To Resist In The World's Constitutions, Tom Ginsburg, Daniel Lansberg-Rodriguez, Mila Versteeg
Public Law and Legal Theory Working Papers
No abstract provided.
Aggregation And Law, Eric A. Posner, Ariel Porat
Aggregation And Law, Eric A. Posner, Ariel Porat
Public Law and Legal Theory Working Papers
If a plaintiff brings two claims, each with a 0.4 probability of being valid, the plaintiff will usually lose, even if the claims are based on independent events, and thus the probability of at least one of the claims being valid is 0.64. If a plaintiff brings two independent claims, and neither of them alleges misconduct sufficient to justify a remedy, the plaintiff will usually lose, even if the claims jointly allege sufficient wrongdoing to justify a remedy. Thus, as a general rule, courts refuse to engage in what we call factual aggregation (the first case) and normative aggregation (the …
Going Outside The Law: The Role Of The State In Shaping Attitudes To Private Acts Of Violence, Tom R. Tyler, Jonathan Jackson, Aziz Huq, Ben Bradford
Going Outside The Law: The Role Of The State In Shaping Attitudes To Private Acts Of Violence, Tom R. Tyler, Jonathan Jackson, Aziz Huq, Ben Bradford
Public Law and Legal Theory Working Papers
Why do people believe that violence is acceptable? In this paper we study people’s normative beliefs about the acceptability of violence to achieve social control (as a substitute for the police, for self-protection and the resolution of disputes) and social change (through violent protests and acts to achieve political goals). Addressing attitudes towards violence among young men from various ethnic minority communities in London, we find that procedural justice is strongly correlated with police legitimacy, and that positive judgments about police legitimacy predicts more negative views about the use of violence. We conclude with the idea that police legitimacy has …
Lumpy Property, Lee Anne Fennell
Lumpy Property, Lee Anne Fennell
Public Law and Legal Theory Working Papers
No abstract provided.