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Articles 1 - 25 of 25
Full-Text Articles in Law
Law & Leviathan: The Best Defense?, Ronald Levin
Law & Leviathan: The Best Defense?, Ronald Levin
Scholarship@WashULaw
In their recent book Law & Leviathan, Cass Sunstein and Adrian Vermeule unveil a novel and provocative approach to legitimating the modern administrative state. Their starting point is a set of procedural principles that the legal philosopher Lon Fuller described as fundamental premises of the law’s “internal morality.”
Using Clinical Practice Guidelines And Knowledge Translation Theory To Cure The Negative Impact Of The National Hospital Peer Review Hearing System On Healthcare Quality, Cost, And Access, Katharine Van Tassel
Using Clinical Practice Guidelines And Knowledge Translation Theory To Cure The Negative Impact Of The National Hospital Peer Review Hearing System On Healthcare Quality, Cost, And Access, Katharine Van Tassel
Katharine Van Tassel
This Article starts with a history of the growth of hospital peer review and then examines the merits of the rationales that motivated the passage of the Health Care Quality Improvement Act of 1986 ('HCQIA'), which catapulted peer review into the national system that exists today. The Article next explains how the peer review hearing process works and how HCQIA turns private hospitals into small, individual quasi-regulatory agencies. The Article goes on to critique the 'bad apples' approach taken by hospital peer review in light of the growing body of empirical research that supports a systems improvement approach to dealing …
Regulating In Uncertainty: Animating The Public Health Product Safety Net To Capture Consumer Products Regulated By The Fda That Use Innovative Technologies, Including Nanotechnologies, Genetic Modification, Cloning, And Lab Grown Meat, Katharine A. Van Tassel
Katharine Van Tassel
This Article will use nanotechnology as an example that highlights how regulation based on novelty rather than hazard achieves the proper balance between protecting public health while encouraging innovation through the animation of the public health product safety net. In Part II, this Article starts by explaining what nanotechnology is and the remarkable growth of its use in everyday consumer products. It then summarizes the steadily increasing number of studies that suggest that there are likely to be serious health risks associated with the use of nanotech consumer products. Next, it explains how the FDA [Food and Drug Administration] is …
A Comment On Cass Sunstein's Equality, Emily Sherwin
A Comment On Cass Sunstein's Equality, Emily Sherwin
Emily L Sherwin
No abstract provided.
Heuristics, Biases, And Philosophy, Jeffrey J. Rachlinski
Heuristics, Biases, And Philosophy, Jeffrey J. Rachlinski
Jeffrey J. Rachlinski
Commenting on Professor Cass Sunstein's work is a daunting task. There is simply so much of it. Professor Sunstein produces scholarship at a rate that is faster than I can consume it. Scarcely an area of law has failed to feel his impact. One cannot today write an article on administrative law, free speech, punitive damages, Internet law, law and economics, separation of powers, or animal rights law without addressing one or more of Sunstein's papers. And his work is typically not a mere footnote. Sunstein has changed how scholars think about each of these areas of law. More broadly, …
The Psychological Foundations Of Behavioral Law And Economics, Jeffrey J. Rachlinski
The Psychological Foundations Of Behavioral Law And Economics, Jeffrey J. Rachlinski
Jeffrey J. Rachlinski
Over the past decade, psychological research has enjoyed a rapidly expanding influence on legal scholarship. This expansion has established a new field—“Behavioral Law and Economics” (BLE). BLE’s principal insight is that human behavior commonly deviates from the predictions of rational choice theory in the marketplace, the election booth, and the courtroom. Because these deviations are predictable, and often harmful, legal rules can be crafted to reduce their undesirable influence. Ironically, BLE seldom recognizes that its intellectual origins lie with psychology more so than economics. This failure leaves BLE open to criticisms that can be answered only by embracing the underlying …
Specific Agreements About Race: A Response To Professor Sunstein, Sheri Johnson
Specific Agreements About Race: A Response To Professor Sunstein, Sheri Johnson
Sheri Lynn Johnson
No abstract provided.
Libertarian Patriarchalism: Nudges, Procedural Roadblocks, And Reproductive Choice, Govind Persad
Libertarian Patriarchalism: Nudges, Procedural Roadblocks, And Reproductive Choice, Govind Persad
Sturm College of Law: Faculty Scholarship
Cass Sunstein and Richard Thaler's proposal that social and legal institutions should steer individuals toward some options and away from others-a stance they dub "libertarian paternalism"-has provoked much high-level discussion in both academic and policy settings. Sunstein and Thaler believe that steering, or "nudging," individuals is easier to justify than the bans or mandates that traditional paternalism involves. This Article considers the connection between libertarian paternalism and the regulation of reproductive choice. I first discuss the use of nudges to discourage women from exercising their right to choose an abortion, or from becoming or remaining pregnant. I then argue that …
Freedom From Food: On The Need To Restore Fdr’S Vision Of Economic Rights In America, And How It Can Be Done, Evgeny Krasnov
Freedom From Food: On The Need To Restore Fdr’S Vision Of Economic Rights In America, And How It Can Be Done, Evgeny Krasnov
Evgeny Krasnov
Within the U.S. policy discourse, it has long been taken for granted that the body of human rights law does not—and should not—include economic rights, which include the right to adequate food, shelter, and health care. This is an irony of history, since the origins of modern-day economic rights law lie in the policies advocated by the U.S. President Franklin Delano Roosevelt.
This Article argues that (1) the common justifications for neglecting economic rights are not sound; (2) there is a pressing need to recognize economic rights in the United States; and (3) the best way to do so is …
Lost Life And Life Projects, Sean Hannon Williams
Lost Life And Life Projects, Sean Hannon Williams
Indiana Law Journal
This Article provides the first analysis of wrongful death damages from the perspective of individual justice accounts of tort law. There is a widespread belief that wrongful death damages are incoherent. Currently, tort law responds only to the harms of the decedent’s living relatives. Drawing on deterrence rationales, Cass Sunstein, Eric Posner, and others have recommended altering these damage awards so that they respond to the harms of the decedent herself by providing “lost life” damages. This Article offers a different and powerful new foundation for lost life damages rooted in corrective justice and its main competitor, civil recourse. At …
Behavioral Economics And Its Meaning For Antitrust Agency Decision Making, William E. Kovacic, James C. Cooper
Behavioral Economics And Its Meaning For Antitrust Agency Decision Making, William E. Kovacic, James C. Cooper
GW Law Faculty Publications & Other Works
Of all fields of regulation in the United States, antitrust law relies most heavily on economics to inform the design and application of legal rules. When drafting antitrust statutes in the late 19th and early 20th centuries, Congress anticipated that courts and enforcement agencies would formulate and adjust operational standards to account for new learning. The field of economics — especially industrial organization economics — would give broad statutory commands much of their analytical content.
In principle, the flexibility of U.S. antitrust statutes makes competition policy adaptable and accommodates for upgrades over time. This evolutionary process is only effective if …
How Money For Legal Scholarship Disadvantages Feminism, Martha T. Mccluskey
How Money For Legal Scholarship Disadvantages Feminism, Martha T. Mccluskey
Journal Articles
A dramatic infusion of outside money has shaped legal theory over the last several decades, largely to the detriment of feminist theory. Nonetheless, the pervasive influence of this funding is largely ignored in scholarly discussions of legal theory. This denial helps reinforce the marginal position of feminist scholarship and of women in legal theory. Conservative activists and funders have understood the central role of developing community culture and institutions, and have helped shift the prevailing framework for discussion of many questions of theory and policy through substantial investments in law-and-economics centers and in the Federalist Society. Comparing the institutional resources …
The Psychological Foundations Of Behavioral Law And Economics, Jeffrey J. Rachlinski
The Psychological Foundations Of Behavioral Law And Economics, Jeffrey J. Rachlinski
Cornell Law Faculty Publications
Over the past decade, psychological research has enjoyed a rapidly expanding influence on legal scholarship. This expansion has established a new field—“Behavioral Law and Economics” (BLE). BLE’s principal insight is that human behavior commonly deviates from the predictions of rational choice theory in the marketplace, the election booth, and the courtroom. Because these deviations are predictable, and often harmful, legal rules can be crafted to reduce their undesirable influence. Ironically, BLE seldom recognizes that its intellectual origins lie with psychology more so than economics. This failure leaves BLE open to criticisms that can be answered only by embracing the underlying …
Heuristics, Biases, And Philosophy, Jeffrey J. Rachlinski
Heuristics, Biases, And Philosophy, Jeffrey J. Rachlinski
Cornell Law Faculty Publications
Commenting on Professor Cass Sunstein's work is a daunting task. There is simply so much of it. Professor Sunstein produces scholarship at a rate that is faster than I can consume it. Scarcely an area of law has failed to feel his impact. One cannot today write an article on administrative law, free speech, punitive damages, Internet law, law and economics, separation of powers, or animal rights law without addressing one or more of Sunstein's papers. And his work is typically not a mere footnote. Sunstein has changed how scholars think about each of these areas of law. More broadly, …
The Odyssey Of Cass Sunstein, James E. Fleming
The Odyssey Of Cass Sunstein, James E. Fleming
Faculty Scholarship
I am delighted to participate in this symposium honoring and criticizing the scholarship of Cass Sunstein. Let me begin by stating something so obvious that we typically don't say it: Cass is the most remarkably thoughtful, constructive, and productive scholar of his (and my) generation, the generation of scholars born around the time that Brown v. Board of Education1 was decided. No one has addressed a wider range of important subjects or made a more substantial contribution to our understanding of law. I have been fruitfully engaging with his scholarship from my first article 2 to my two recent books.3 …
Six Degrees Of Cass Sunstein, Tracey E. George, Paul H. Edelman
Six Degrees Of Cass Sunstein, Tracey E. George, Paul H. Edelman
Vanderbilt Law School Faculty Publications
Degrees of separation is a concept that is intuitive and appealing in popular culture as well as academic discourse: It tells us something about the connectedness of a particular field. It also reveals paths of influence and access. Paul Erdős was the Kevin Bacon of his field - math - coauthoring with a large number of scholars from many institutions and across subfields. Moreover, his work was highly cited and important. Mathematicians talk about their Erdős number (i.e., numbers of degrees of separation) as a sign of their connection to the hub of mathematics: An Erdős number of 2 means …
A Review Of Animal Rights: Current Debates And New Directions, Laura Ireland Moore
A Review Of Animal Rights: Current Debates And New Directions, Laura Ireland Moore
Animal Law Review
No abstract provided.
Cass Sunstein's "New Deal" For Free Speech: Is It An "Un-American" Theory Of Speech?, Richard J. Vangelisti
Cass Sunstein's "New Deal" For Free Speech: Is It An "Un-American" Theory Of Speech?, Richard J. Vangelisti
Kentucky Law Journal
No abstract provided.
Specific Agreements About Race: A Response To Professor Sunstein, Sheri Johnson
Specific Agreements About Race: A Response To Professor Sunstein, Sheri Johnson
Cornell Law Faculty Publications
No abstract provided.
The Constitution Of Reasons, Robin West
The Constitution Of Reasons, Robin West
Georgetown Law Faculty Publications and Other Works
Cass Sunstein's book, The Partial Constitution, brings together a number of his constitutional law essays from the last ten years. During that time, Sunstein has argued, powerfully, for the unconstitutionality of regulatory constraints on access to abortion; for the constitutionality of and the need for regulation of violent pornography; for the constitutionality of limits on both campaign spending and congressional control over public broadcasting; for the deep consistency, conventional wisdom to the contrary notwithstanding, of the Court's repudiation of Lochner in 1937 with its 1974 decision in Roe v. Wade; for the view that we should accord far less deference …
With All Deliberate Speed? A Reply To Professor Sunstein, Marc A. Fajer
With All Deliberate Speed? A Reply To Professor Sunstein, Marc A. Fajer
Indiana Law Journal
No abstract provided.
A Comment On Cass Sunstein's Equality, Emily Sherwin
A Comment On Cass Sunstein's Equality, Emily Sherwin
Cornell Law Faculty Publications
No abstract provided.
Getting From Here To There, Cynthia R. Farina
Sunstein, Statutes, And The Common Law – Reconciling Markets, The Communal Impulse, And The Mammoth State, Peter L. Strauss
Sunstein, Statutes, And The Common Law – Reconciling Markets, The Communal Impulse, And The Mammoth State, Peter L. Strauss
Faculty Scholarship
Professor Cass Sunstein's new book, After the Rights Revolution: Reconceiving the Regulatory State, builds upon, and in important ways seeks to integrate, much of Professor Sunstein's work over the past several years. He has been one of our most prolific and influential writers on issues of governmental structure, approaching the subject both from more or less conventional administrative law perspectives and from the constitutional perspectives of separation of powers. His work has dealt with a tension often addressed in the literature, that between the eighteenth-century Madisonian constitutional engine of limited, internally checked government and the realities of our sprawling …
Considering Political Alternatives To "Hard Look" Review, Peter L. Strauss
Considering Political Alternatives To "Hard Look" Review, Peter L. Strauss
Faculty Scholarship
That is absolutely right. I am sufficiently confused by the facts that are already on the table – two of them in particular. One (the dog that I thought was barking in that interesting first chart Don Elliott put up, on which he did not remark), is that the first two periods of judicial review he showed us had 337 and 294 cases of judicial review each; for the third period, for the same length of time, the figure is about 800. Something is going on there. The other is just a square conflict that our moderator is much better …