Selection Effects in Constitutional Law

  title={Selection Effects in Constitutional Law},
  author={Adrian Vermeule},
  journal={Virginia Law Review},
  • Adrian Vermeule
  • Published 2004
  • Economics, Political Science
  • Virginia Law Review
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 of constraining officials to promote the public welfare, or at least the welfare of the median voter; justify the separation of powers as a means of making "ambition counteract ambition"; justify negative liberties, such as free speech and free association, as a necessary… Expand
17 Citations
Undue Process: Congressional Referral and Judicial Resistance in the Schiavo Controversy
The congressional response to the Schiavo controversy was both extraordinary and feeble. Without touching substantive law, Congress essentially offered Schiavo's parents a referral to a federal courtExpand
Libertarian Panics
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 andExpand
The International Protection of Cultural Property: Some Skeptical Observations
Cultural property is subject to two international legal regimes, one of which protects cultural property during wartime, and the other of which regulates the international trade in cultural property.Expand
Agency Slack and the Design of Criminal Justice Institutions
This book chapter analyzes the problem of state wrongs in criminal justice institutions. The chapter first evaluates the need for institutional design solutions, as opposed to political solutions, orExpand
Standing and the Precautionary Principle
  • Jonathan Remy Nash
  • Political Science
  • 2007
In Massachusetts v. EPA, the Supreme Court upheld Massachusetts' standing to challenge EPA's refusal to regulate greenhouse gas emissions from mobile sources. The majority and dissent disputedExpand
Punishing the Innocent
Scholars highlight an "innocence problem" as one of plea bargaining's chief failures. Their concerns, however, are misguided. In fact, most innocent defendants are far better off in a world with pleaExpand
What Good is the Social Model of Disability?
A social model of disability relates a person's disadvantage to the combination of personal traits and social setting. The model appears to have had a profound impact on academics, politics, and lawExpand
On the Tension between Sex Equality and Religious Freedom
When, if ever, is it legitimate for law to ban sex discrimination by religious institutions? It is best to approach this question by noticing that most of the time, ordinary civil and criminal lawExpand
The New International Law Scholarship
This essay replies to criticisms advanced at a conference on our book, The Limits of International Law. We engage the critics on several methodological issues, we attempt to correct misimpressionsExpand
An Answer to the Question: 'What is Poststructuralism?'
What is poststructuralism? It has always struck me as odd that so many critical theorists are reluctant to offer an answer to this question. In this essay, I unpack the term and provide a synopticExpand


The Future of Campaign Finance Reform Laws in the Courts and in Congress
The objective of campaign finance regulation has been incorrectly formulated. The main goal of campaign finance laws articulated by judges and legislators has been to eliminate a certain kind ofExpand
Is the Party Over? The Court and the Political Process
This article identifies and analyzes five features of political parties that make them among the most complex and dynamic of any political institution and therefore among the most difficult for theExpand
The Judiciary Is a They, Not an It: Two Fallacies of Interpretive Theory
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 particularExpand
Does Commerce Clause Review Have Perverse Effects
There is a crucial empirical assumption that pervades the debate about federal judicial review of federal statutes under the affirmative Commerce Clause. The assumption, indulged by many differentExpand
Institutional Lessons from the 2000 Presidential Election
This essay discusses two issues raised by the 2000 presidential election that are relevant to institutional design and institutional choice and that have applicability beyond the presidentialExpand
Truth in Government: Beyond the Tax Expenditure Budget
If improving the utility of information distributed about the direction and function of government is the desired end, the paper contends, one must focus on the interaction between the various information sources rather than the merits or demerits of any particular source of information. Expand
Lessons for the Future of Affirmative Action from the Past of the Religion Clauses?
  • M. Case
  • Sociology, Political Science
  • 2000
For both educational affirmative action and the use of race in districting, this essay pursues parallels with the Supreme Court's religion clause jurisprudence in aid of the argument that theExpand
Why Does the American Constitution Lack Social and Economic Guarantees
Why does the American Constitution lack certain social and economic guarantees, which appear in most contemporary constitutions? This essay explores four possible answers: chronological, cultural,Expand
Common Law, Common Ground, and Jefferson's Principle
Thomas Jefferson's famous argument that "the earth belongs to the living" - and therefore no generation has the right to rule another - is a standing challenge to anyone who believes that writtenExpand
Culture and Government Money: A Guide for the Perplexed
Constitutional limits on government's power to regulate the culture and the arts, newly salient in light of the controversy involving the Brooklyn Museum, are best understood by distinguishing amongExpand