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The Judiciary Is a They, Not an It: Interpretive Theory and the Fallacy of Division
(University of San Diego School of Law, 2005)
In the theory of constitutional and statutory interpretation, dynamic arguments point to the beneficial effects on legislative behavior that will result if "judges" or "courts" adopt a particular approach to interpretation. ...
Selection Effects in Constitutional Law
(Virginia Law Review Association, 2005)
The standard consequentialist analysis of constitutional law focuses on the incentives that shape the behavior of government officials and other constitutional actors. Incentive-based accounts justify elections as a means ...
Three Strategies of Interpretation
(University of San Diego, 2005)
We may distinguish three styles or strategies of decisionmaking. Under a maximizing approach, the decisionmaker chooses the action whose consequences are best for the case at hand (defining "best" according to some value ...
Libertarian Panics
(Rutgers School of Law, 2005)
In a standard analysis, the history of civil liberties is characterized by a series of security panics. A range of mechanisms - cognitive heuristics and biases, various forms of cascading and herding, conformity and ...
Submajority Rules: Forcing Accountability upon Majorities
(Wiley-Blackwell, 2005)
Legal and political theory have paid a great deal of attention to supermajority rules, which require a fraction of votes greater than 1/2+1 to reach a decision, and thus empower a minority to block change. In this paper I ...