The Credible Executive

  title={The Credible Executive},
  author={E. Posner and Adrian Vermeule},
  journal={Harvard Law School},
Legal and constitutional theory has focused chiefly on the risk that voters and legislators will trust an ill-motivated executive. This paper addresses the risk that voters and legislators will fail to trust a well-motivated executive. Absent some credible signal of benign motivations, voters will be unable to distinguish good from bad executives and will thus withhold discretion that they would have preferred to grant, making all concerned worse off. We suggest several mechanisms with which a… Expand
Political Accountability Under Alternative Institutional Regimes
We analyze the interaction between electoral accountability and separation-of-powers as mechanisms for reducing political agency slack. We compare three stylized regimes: a "Unilateral Authority"Expand
Depoliticizing Administrative Law
A large body of empirical evidence demonstrates that judicial review of agency action is highly politicized, in the sense that Republican appointees are significantly more likely to invalidateExpand
The Real World of Arbitrariness Review
The Administrative Procedure Act instructs federal courts to invalidate agency decisions that are "arbitrary" or "capricious." In its 1983 decision in the State Farm case, the Supreme Court firmlyExpand
Does Political Bias in the Judiciary Matter?: Implications of Judicial Bias Studies for Legal and Constitutional Reform
Recent empirical scholarship that shows that judges decide cases in a manner that is consistent with their political biases has motivated a stream of proposals for reform, including judicial termExpand
Other People’s Money
There is no more sacred tenet of corporate law than the one stating that corporate directors owe a fiduciary duty to shareholders. We argue that while this rule has not yet generated seriouslyExpand
Judicial Ideology and the Transformation of Voting Rights Jurisprudence
For two decades, the doctrinal test laid out in Thornburg v. Gingles has been the centerpiece of vote dilution litigation in the United States. Gingles defined a sequential, two-part frameworkExpand
Rational Judicial Behavior: A Statistical Study
This paper analyzes the connection between ideology and voting of judges using a large sample of court of appeals cases decided since 1925 and Supreme Court cases decided since 1937. The ideologicalExpand
What Standing Is Good For
This Article provides a novel explanation of the function of standing doctrine in public law. Standing restrictions bar suits challenging governmental conduct that harms many people in an similarExpand
Political Accountability Under Alternative Institutional Regimes
We analyze the interaction between electoral accountability and separation-of-powers by comparing three regimes: ‘Unilateral Authority’ (the President has exclusive decision-making power); ‘MandatoryExpand
Politics as Law: Juridified Executive Unilateralism in the Global War on Terror
In this dissertation, I examine the Bush administration’s uniquely legal strategy to monopolize policy-making in the Global War on Terror. First, I situate juridified executive unilateralism (JEU) inExpand


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
Separation of Parties, Not Powers
American political institutions were founded upon the Madisonian assumption of vigorous, self-sustaining political competition between the legislative and executive branches. Congress and theExpand
Ideological Voting on Federal Courts of Appeals: A Preliminary Investigation
For many decades, the United States has been conducting an extraordinary natural experiment: Randomly assigned three-judge panels on courts of appeals produce extensive evidence of the effect ofExpand
Political Trials in Domestic and International Law
Due process protections and other constitutional restrictions normally ensure that citizens cannot be tried and punished for political dissent, but these same restrictions interfere with criminalExpand
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
Executive Exposure: Government Secrecy, Constitutional Law, and Platforms for Judicial Elaboration
American law never reached a satisfying conclusion about public access to information on government operations. Recent events are prompting reconsideration. As we assess our current system, threeExpand
Minimalism at War
When national security conflicts with individual liberty, reviewing courts might adopt one of three general orientations: National Security Maximalism, Liberty Maximalism, and minimalism. NationalExpand
The Credibility Imperative: The Political Dynamics of Retaliation in the World Trade Organization's Dispute Resolution Mechanism
Under the WTO’s dispute settlement procedures, a party that has been injured by a scofflaw state’s failure to comply with its trade obligations may retaliate against the scofflaw state by withdrawingExpand
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
Chevron as a Voting Rule
In Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., the Supreme Court created a new framework for judicial deference to agency interpretations of law: courts should defer to an agencyExpand