1,722,211 research outputs found
There Is Nothing That Interpretation Just Is
Full text linkSunstein, Cass R.. (2015). There Is Nothing That Interpretation Just Is. Retrieved from the University Digital Conservancy, https://hdl.handle.net/11299/183132
Sunstein, Cass R.: Behavioral Science and Public Policy
Full text linkReview of the book: Sunstein, Cass R.: Behavioral Science and Public Policy. Elements in Public Economics, Cambridge University Press.Recensión del libro de Sunstein, Cass R.: Behavioral Science and Public Policy. Elements in Public Economics, Cambridge University Press
Formalism in Constitutional Theory
Full text linkSunstein, Cass R.. (2017). Formalism in Constitutional Theory. Retrieved from the University Digital Conservancy, https://hdl.handle.net/11299/183484
Is the Clean Air Act Unconstitutional?
Full text linkWhen the Environmental Protection Agency (EPA) issues national ambient air quality regulations, it should meet two requirements. First, the EPA should specify, to the extent possible in quantitative terms, the range of benefits that it believes will follow from each new rule it seeks to promulgate. It should specify as well the range of benefits that it believes would follow from at least two alternative approaches, one stricter and one more lenient than the chosen regulation. In the process the agency should describe the level of "residual risk" under all three options. Second, the EPA should explain why it believes the chosen rule to be preferable to the alternatives-that is, why the benefits to flow from the selected rule justify that rule and why the benefits that would follow from the alternative rules, more and less stringent, fail to justify it. If necessary, the courts should require the EPA to carry out the proposed tasks. But when the EPA does perform these tasks, and does so reasonably, the courts should uphold the underlying regulations. The introduction of these changes would eliminate the need for any resurgence of interest in the nondelegation doctrine, which should be reserved only for the most egregious cases. The Clean Air Act is constitutional.
Illusory Losses
Full text linkRecent 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 because those who suffer losses do not focus on them on a daily basis. These findings have important implications for the legal system, especially for awards for pain, suffering, and hedonic losses, as juries overestimate the effect of injuries on happiness. There are two qualifications. First, some injuries do inflict significant hedonic losses because people cannot help focusing on them, such as chronic pain. Second, people may suffer 'capability loss' without suffering hedonic loss, and that should be compensable. These considerations suggest that the legal system might be improved by a set of Civil Damages Guidelines to correct these errors. There are also broader implications, involving the appropriate priorities for governments attempting to improve the welfare of their citizens.
How Star Wars Illuminates Constitutional Law
Full text linkHuman beings often see coherence and planned design when neither exists. This is so in movies, literature, history, economics, and psychoanalysis – and constitutional law. Contrary to the repeated claims of George Lucas, its principal author, the Star Wars series was hardly planned in advance; it involved a great deal of improvisation and surprise, even to Lucas himself. Serendipity and happenstance, sometimes in the forms of eruptions of new thinking, play a pervasive and overlooked role in the creative imagination, certainly in single-authored works, and even more in multi-authored ones extending over time.
Serendipity imposes serious demands on the search for coherence in art, literature, history, and law. That search leads many people (including Lucas) to misdescribe the nature of their own creativity and authorship. The misdescription appears to respond to a serious human need for sense-making and pattern-finding, but it is a significant obstacle to understanding and critical reflection. Whether Jedi or Sith, many authors of constitutional law are a lot like the author of Star Wars, disguising the essential nature of their own creative processes.Author's Origina
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Legal reasoning and political conflict /
No full text"[This book presents the author's] new thesis about how the law should work in America, arguing that the courts best enable people to live together, despite their diversity, by resolving particular cases without taking sides in broader, more abstract conflicts. [The author] analyzes the way the law can mediate disputes in a diverse society, examining how the law works in practical terms, and showing that, to arrive at workable, practical solutions, judges must avoid broad, abstract reasoning. He states that judges purposely limit the scope of their decisions to avoid reopening large-scale controversies, calling such actions incompletely theorized agreements. In identifying them as the core feature of legal reasoning, he takes issue with advocates of comprehensive theories and systemization, from Robert Bork to Jeremy Bentham, and Ronald Dworkin. Equally important, [the author] goes on to argue that it is the living practice of the nation's citizens that truly makes law. Legal reasoning can seem impenetrable, mysterious, baroque. [This book] helps dissolve the mystery. Whether discussing abortion, homosexuality, or free speech, the meaning of the Constitution, or the spell cast by the Warren Court ... [the author] moves the debate over fundamental values and principles out of the courts and back to its rightful place in a democratic state: to the legislatures elected by the people. In this second edition, the author updates the previous edition bringing the book into the current mainstream of twenty-first century legal reasoning and judicial decision-making focusing on the many relevant contemporary issues and developments that occurred since its initial 1996 publication."-
On the Costs and Benefits of Aggressive Judicial Review of Agency Action
Full text linkIn this essay, the author undertakes three tasks. The first is to describe some of the difficulties of defining benefits in the setting of judicial review of administrative action. The second task is to offer reasons, though tentative and largely anecdotal ones, for an affirmative answer to the question whether aggressive judicial review has produced net benefits. At the very least, the author suggests, aggressive judicial review has had significant benefits in many settings. The third and final task is to outline some proposals by which to increase the benefits, and decrease the risks, of an aggressive judicial posture in administrative law
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