Showing papers by "Eric A. Posner published in 2016"

The Votes of Other Judges

Abstract: Judges on a multimember court might vote in two different ways In the first, judges behave solipsistically, imagining themselves to be the sole judge on the court, in the style of Ronald Dworkin’s mythical Judge Hercules On this model, judges base their votes solely on the information contained in the legal sources before them – statutes, regulations, precedents and the like – and the arguments of advocates In the second model, judges vote interdependently; they take into account not only the legal sources and arguments, but also the information contained in the votes of other judges, based on the same sources and arguments What does the law say about these two models? May judges take into account the votes of colleagues when deciding how to vote themselves? Should they do so? Are there even conditions under which judges must do so? To date, the law has no general theory about how to approach interdependent voting Each setting is taken on its own terms, and judges muddle through The problem is that some judges muddle in one direction, some in another, without any consistent approach, either across judges, or across settingsWe argue for a presumption that judges not only may but should consider the votes of other judges as relevant evidence or information, unless special circumstances obtain that make the systemic costs of doing so clearly greater than the benefits Our view is not absolutist; we do not say that judges should always and everywhere consider the votes of other judges Under certain conditions, it may be better for decisionmakers not to attempt to consider all available information, and we will attempt to indicate what those conditions might be, in this domain But we will argue that such conditions should not casually be assumed to exist Interdependence should be the norm, and solipsism the exception, so that unless judges have good reason to do otherwise they should take into account the information contained in other judges’ votes Our central case is an extended fugue on Chevron-related examples and variants, but we also consider qualified immunity, new rules in habeas corpus, mandamus, and the rule of lenity

The Votes of Other Judges

Abstract: Judges on a multimember court might vote in two different ways. In the first, judges behave solipsistically, imagining themselves to be the sole judge on the court, in the style of Ronald Dworkin’s mythical Judge Hercules. On this model, judges base their votes solely on the information contained in the legal sources before them – statutes, regulations, precedents and the like – and the arguments of advocates. In the second model, judges vote interdependently; they take into account not only the legal sources and arguments, but also the information contained in the votes of other judges, based on the same sources and arguments. What does the law say about these two models? May judges take into account the votes of colleagues when deciding how to vote themselves? Should they do so? Are there even conditions under which judges must do so? To date, the law has no general theory about how to approach interdependent voting. Each setting is taken on its own terms, and judges muddle through. The problem is that some judges muddle in one direction, some in another, without any consistent approach, either across judges, or across settings.We argue for a presumption that judges not only may but should consider the votes of other judges as relevant evidence or information, unless special circumstances obtain that make the systemic costs of doing so clearly greater than the benefits. Our view is not absolutist; we do not say that judges should always and everywhere consider the votes of other judges. Under certain conditions, it may be better for decisionmakers not to attempt to consider all available information, and we will attempt to indicate what those conditions might be, in this domain. But we will argue that such conditions should not casually be assumed to exist. Interdependence should be the norm, and solipsism the exception, so that unless judges have good reason to do otherwise they should take into account the information contained in other judges’ votes. Our central case is an extended fugue on Chevron-related examples and variants, but we also consider qualified immunity, new rules in habeas corpus, mandamus, and the rule of lenity.

Supreme Court Justices’ Loyalty to the President

Abstract: A statistical analysis of voting by Supreme Court justices from 1937 to 2014 provides evidence of a loyalty effect—justices more frequently vote for the government when the president who appointed them is in office than when subsequent presidents lead the government. This effect exists even when subsequent presidents are of the same party as the justices in question. However, the loyalty effect is much stronger for Democratic justices than for Republican justices. This may be because Republican presidents are more ideologically committed than Democratic justices are, leaving less room for demonstrations of loyalty.

What Legal Authority Does the Fed Need During a Financial Crisis

Abstract: The financial crisis of 2007-2008 exposed gaps in the law that authorizes federal agencies to provide emergency liquidity support. This essay describes the ways in which legal constraints hampered response to the crisis, proposes reforms that would make possible a unified and strong response, and criticizes the Dodd-Frank Act for weakening, rather than strengthening, the crisis-response agencies.

Should Regulation Be Countercyclical

Abstract: Politicians and commentators have from time to time proposed that regulations be suspended or delayed during recessions because of their adverse impact on employment. We evaluate this argument from within a macroeconomic framework. We argue that a case can be made for what we call countercyclical regulation if certain empirical premises are valid; explore the ways in which such regulation might best be designed; and evaluate the legal authority of agencies to issue countercyclical regulations. Because the empirical premises for countercyclical regulation are highly uncertain, it should be adopted on an experimental basis.

Quadratic Election Law

Abstract: The standard form of electoral system in the United States — plurality voting with one person, one vote — suffers from countless defects, most of which stem from its failure to enable people to register the intensity of their preferences for political outcomes when they vote. Quadratic voting, an elegant alternative system proposed by Glen Weyl, provides a theoretically attractive solution to this problem but is an awkward fit with America’s legal and political traditions. We identify the legal barriers to the adoption of quadratic voting, discuss modified versions that could pass muster, and show how even a modified version would address many of the pathologies of the existing system.

Should Regulation Be Countercyclical

Abstract: Politicians and commentators have from time to time proposed that regulations be suspended or delayed during recessions because of their adverse impact on employment. We evaluate this argument from within a macroeconomic framework. We argue that a case can be made for what we call countercyclical regulation if certain empirical premises are valid; explore the ways in which such regulation might best be designed; and evaluate the legal authority of agencies to issue countercyclical regulations. Because the empirical premises for countercyclical regulation are highly uncertain, it should be adopted on an experimental basis.

Unquantified Benefits and the Problem of Regulation under Certainty

Abstract: 102 Cornell Law Review 87 (2016)Regulatory agencies are required to perform cost-benefit analysis of major rules. However, in many cases regulators refuse to report a monetized value for the benefits of a rule that they issue. Sometimes, they report no monetized value; at other times, they report a monetized value but also state that not all benefits have been quantified. On occasion, regulators also refuse to monetize or fully monetize costs. These practices raise a puzzle. If a regulator chooses not to monetize all the benefits or all the costs, it is not doing cost-benefit analysis. If it is not doing cost-benefit analysis, what is it doing? To investigate this question, we compiled a data set consisting of all major regulations issued by agencies from 2010 to 2013. We come to three conclusions. First, there are countless examples where agencies fail to fully monetize the benefits and costs of regulations. Second, in most cases, agencies could easily monetize or partially monetize those benefits and costs. Third, even where monetization would be difficult, the agencies could and should have made explicit the implicit valuations they relied on and supported those valuations as much as possible with empirical evidence. We then proceed to explain how agencies could engage in cost-benefit analysis even when they do not have a reliable basis for estimating valuations. Even where they lack complete data, agency regulators may be able to make reasonable guesses about the harms or benefits from regulations. In many cases, these guesses will be based on the experience and latent knowledge of the agency staff. These preliminary guesses constitute Bayesian prior probabilities. While agencies should be permitted to “guess” — that is, supply a subjective prior probability — they must also be required to update their estimates as they gain new information.

Balance‐of‐Powers Arguments, the Structural Constitution, and the Problem of Executive “Underenforcement”

Abstract: Balance-of-powers arguments are ubiquitous in judicial opinions and academic articles that address separation-of-powers disputes over the President’s removal authority, power to disregard statutes, authority to conduct foreign wars, and much else. However, the concept of the balance of powers has never received a satisfactory theoretical treatment. Possible theories of the balance of powers are examined and all are rejected as unworkable and normatively implausible. Judges and scholars should abandon the balance-of-powers metaphor and instead address directly whether bureaucratic innovation is likely to improve policy outcomes. Additionally, implications for the underenforcement controversy are discussed.

What Legal Authority Does the Fed Need During a Financial Crisis

Abstract: The financial crisis of 2007-2008 exposed gaps in the law that authorizes federal agencies to provide emergency liquidity support. This essay describes the ways in which legal constraints hampered response to the crisis, proposes reforms that would make possible a unified and strong response, and criticizes the Dodd-Frank Act for weakening, rather than strengthening, the crisis-response agencies. During the financial crisis of 2007-2008, the government sought to use aggressive measures to unfreeze the credit markets, but found itself repeatedly blocked by the law. Officials reacted to their legal problems in different ways. During the collapse of Lehman, the Fed refused to issue an emergency loan because of legal hurdles. However, in the cases of Bear and AIG, the Fed violated the law or interpreted it in an extremely narrow way, rather than refrain from the emergency actions that events called for. The Fed and Treasury relied on additional questionable legal interpretations for the numerous credit facilities that they established, and in the bailouts of Freddie Mae, Freddie Mac, General Motors, and Chrysler. In many cases, the agencies evaded the law by engaging in elaborate legal maneuvers that obfuscated their actions. When the Fed and Treasury sought additional legal authority from Congress, Congress initially refused, causing one of the most dangerous moments during the crisis. At the same time, the mainstream view is that most of the government’s actions were good policy. They put an end to a massive liquidity crisis—the worst since the Great Depression, possibly the worst in U.S. history—and spared the country an even more severe downturn than the Great Recession of 2007-2009. Moreover, the failure to rescue Lehman—law or no law— was the Fed’s biggest mistake: the collapse of Lehman introduced the most acute phase of the financial crisis, which until that point seemed manageable. The mismatch between law and policy raises numerous questions. Should the law be updated to permit the policy interventions that the government felt it needed to use? If so, how exactly should the law be changed? It is possible to argue that the law makes little difference. The agencies and their leaders did not pay a price for their legal violations during the crisis; next time around, they may disregard the law again.2 But it is clearly better if the Fed acts lawfully than if it acts illegally. The legal restrictions were not costless. They caused the Fed to act more cautiously than it should have, and have allowed officials to blame their costly failure to rescue Lehman Brothers 1 Kirkland & Ellis Distinguished Service Professor and Arthur and Esther Kane Research Chair, University of Chicago Law School. Thanks to participants at a workshop at the University of Chicago Law School for comments, and to Ethel Amponsah and Hannah Waldman for research assistance. 2 Eric A. Posner & Adrian Vermeule, The Executive Unbound: After the Madisonian Republic (2010); cf. Philip A. Wallach, To The Edge: Legality, Legitimacy, and the Responses to the 2008 Financial Crisis (2015) (arguing that the Fed’s major constraint was that of maintaining legitimacy rather than legality, though the two were related).

The Law, Economics, and Psychology of Manipulation

Abstract: This comment on Cass Sunstein’s paper, ”Fifty Shades of Manipulation", argues that “manipulation” — “controlling or playing upon someone by artful, unfair, or insidious means especially to one’s own advantage” — has always been regarded as wrongful, an indirect form of fraud, by common law courts and government regulators. The manipulator perceives that the victim brings incorrect assumptions to a transaction and does not correct them, or else anticipates and takes advantage of people’s propensity to make incorrect inferences. Thus, the manipulator is able to effect a transfer from the victim to himself without resorting to explicit fraudulent statements or coercion. Within the various standard constraints like problems of proof, the government should and does try to restrict manipulation for standard efficiency and welfarist reasons. The law does not provide a remedy to fraud when it causes no harm, and similarly it should not for manipulation. Analogously, I argue that when government uses manipulation to advance the public good, it should be evaluated on welfarist grounds.

System and method for quadratic, near-quadratic, and convex voting in various types of research and voting

Abstract: A method for eliciting and aggregating truthful preferences of respondents, with steps of assigning a currency budget to a respondent and generating a user interface. The user interface: displays budgets for each respondent; displays choices among alternative outcomes for each respondent and a method for allocating votes among options by paying according to a quadratic function; displays the outcome of the voting for each respondent; enables a third party to select and contact respondents; enables the third party to observe voting choices and final voting outcomes; and enables the third party to control budgets and voting options.

Respect for Human Rights: Law and History

Abstract: Several recent studies have found a positive, statistically significant correlation between ratification of human rights treaties and respect for human rights. Some commentators have interpreted these results as evidence of the causal effect of international human rights law on human rights outcomes. We revisit this debate and present evidence that for two treaties — the Convention on Elimination of Discrimination Against Women and the Convention Against Torture — these results disappear once time trends are taken into account. Our evidence suggests that recent improvements in human rights are attributable to long running trends that pre-date the emergence of the relevant treaty regimes.

Should Human Rights Law Play a Role in Development

Abstract: Many human rights advocates believe that development agencies—agencies that define their mission as providing economic and technical aid to impoverished countries—should be required to respect and promote human rights law. This style of human rights imperialism should be resisted. While development agencies should obviously comply with domestic law and try to promote good rather than bad outcomes, there is no benefit in holding them to human rights law. Human rights law was designed for states, not for NGOs, and how it would be applied to NGOs is far from obvious. Because of the ambiguity and vast scope of human rights law, the practical effect of these proposals would be to add another layer of bureaucracy to development projects while subjecting those projects to scrutiny by lawyers with little to guide them but their intuitive notions of right and wrong.

Système et procédé de vote quadratique, quasi quadratique et convexe dans divers types de recherches et de votes

Abstract: L'invention concerne un procede permettant de provoquer et de regrouper des preferences sinceres de repondants, qui comprend des etapes consistant a attribuer un budget en monnaie a un repondant et a generer une interface utilisateur. L'interface utilisateur : affiche des budgets pour chaque repondant ; affiche des choix parmi des resultats alternatifs pour chaque repondant et un procede d'attribution de votes parmi des options par paiement selon une fonction quadratique ; affiche le resultat du vote pour chaque repondant ; permet a un tiers de selectionner et de contacter des repondants ; permet au tiers d'observer des choix de vote et des resultats de vote finaux ; et permet au tiers de commander des budgets et des options de vote.

Presidential Leadership & the Separation of Powers

Abstract: The presidents who routinely are judged the greatest leaders are also the most heavily criticized by legal scholars. The reason is that the greatest presidents succeeded by overcoming the barriers erected by Madison's system of separation of powers, but the legal mind sees such actions as breaches of constitutional norms that presidents are supposed to uphold. With the erosion of Madisonian checks and balances, what stops presidents from abusing their powers? The answer lies in the complex nature of presidential leadership. The president is simultaneously leader of the country, a party, and the executive branch. The conflicts between these leadership roles put heavy constraints on his power.