institutional design seminar syllabus - fall 2011.pdf

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1 Institutional Design Theory and Public Law: Seminar Professor Matthew C. Stephenson Fall 2011, Thursdays 5:00-7:00 (Lewis 202) Course Description The goal of this seminar is to introduce students to a body of legal scholarship that seeks to apply ideas and insights from the social sciences (particularly political science and economics) to a range of questions concerning the optimal design of legal and political institutions. Each week, we will read and discuss contemporary legal academic scholarship in this genre. Assignments Students are expected to read all the assigned material (approximately 150-200 pages per session) carefully before each meeting, and to come each week prepared to be an active participant in our seminar discussions. There is no written assignment for the first class meeting on September 15 th . In 8 of the 11 remaining sessions, each student should write a short reaction paper based on that week’s readings. (You can choose which of the weeks you will turn in a paper, and you do not need to let me know in advance.) The reaction paper should be 3-5 pages long (double-spaced, normal font). You have a great deal of freedom in what you choose to write, but ideally your reaction papers should raise issues and questions that might serve as grist for discussions in our weekly meetings. The weekly reaction papers are due by 4:00 p.m. on the Wednesday before our weekly meeting. Please email them both to me ([email protected] ) and my assistant Kaitlin Burroughs ([email protected] ). Students who are interested in writing a longer paper, based on themes and topics covered in the seminar, are encouraged to enroll in the spring semester writing workshop. If this is something you are interested in doing, please let me know and I’ll be happy to talk with you during office hours, or by appointment, about your paper topic ideas. Reading Materials The reading packet (in three volumes) is available from the Distribution Center. All the assigned papers are also available on-line via Lexis, Westlaw, or Hein Online.

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  • 1

    Institutional Design Theory and Public Law: Seminar Professor Matthew C. Stephenson

    Fall 2011, Thursdays 5:00-7:00 (Lewis 202)

    Course Description

    The goal of this seminar is to introduce students to a body of legal scholarship that seeks to apply ideas and insights from the social sciences (particularly political science and economics) to a range of questions concerning the optimal design of legal and political institutions. Each week, we will read and discuss contemporary legal academic scholarship in this genre.

    Assignments

    Students are expected to read all the assigned material (approximately 150-200 pages per session) carefully before each meeting, and to come each week prepared to be an active participant in our seminar discussions.

    There is no written assignment for the first class meeting on September 15th. In 8 of the 11

    remaining sessions, each student should write a short reaction paper based on that weeks readings. (You can choose which of the weeks you will turn in a paper, and you do not need to let me know in advance.) The reaction paper should be 3-5 pages long (double-spaced, normal font). You have a great deal of freedom in what you choose to write, but ideally your reaction papers should raise issues and questions that might serve as grist for discussions in our weekly meetings. The weekly reaction papers are due by 4:00 p.m. on the Wednesday before our weekly meeting. Please email them both to me ([email protected]) and my assistant Kaitlin Burroughs ([email protected]).

    Students who are interested in writing a longer paper, based on themes and topics covered in the

    seminar, are encouraged to enroll in the spring semester writing workshop. If this is something you are interested in doing, please let me know and Ill be happy to talk with you during office hours, or by appointment, about your paper topic ideas.

    Reading Materials

    The reading packet (in three volumes) is available from the Distribution Center. All the assigned papers are also available on-line via Lexis, Westlaw, or Hein Online.

  • 2

    Course Schedule and Reading Assignments

    Introduction: Institutional Design and Legal Institutions Week 1 (Sept. 15): Comparative Institutional Competence

    Edward L. Rubin, The New Legal Process, the Synthesis of Discourse, and the Microanalysis of Institutions, 109 HARV. L. REV. 1393 (1996)

    Neil K. Komesar, Taking Institutions Seriously: Introduction to a Strategy for Constitutional Analysis, 51 U. CHI. L. REV. 366 (1984)

    Cass R. Sunstein & Adrian Vermeule, Interpretation and Institutions, 101 MICH. L. REV. 885 (2003)

    Richard A. Posner, Reply: The Institutional Dimensions of Statutory and Constitutional Interpretation, 101 MICH. L. REV. 952 (2003)

    Cass R. Sunstein & Adrian Vermeule, Interpretive Theory in its Infancy: A Reply to Posner, 101 MICH. L. REV. 972 (2003)

    Part I: Institutional Design and Democratic Government Week 2 (Sept. 22): Political Competition and Majority Rule

    Richard Pildes & Samuel Issacharoff, Politics as Markets: Partisan Lockups of the Democratic Process, 50 STAN. L. REV. 643 (1998)

    Richard L. Hasen, The Political Market Metaphor and Election Law: A Comment on Issacharoff and Pildes, 50 STAN. L. REV. 719 (1998)

    Matthew C. Stephenson, Optimal Political Control of the Bureaucracy, 107 MICH. L. REV. 53 (2008)

    Week 3 (Sept. 29): Separation of Powers and Political Accountability

    Christopher R. Berry & Jacob E. Gersen, The Unbundled Executive, 75 U. CHI. L. REV. 1385 (2008)

    Steven G. Calabresi & Nicholas Terrell, The Fatally Flawed Theory of the Unbundled Executive, 93 MINN. L. REV. 1696 (2009)

    Jide O. Nzelibe & Matthew C. Stephenson, Complementary Constraints: Separation of Powers, Rational Voting, and Constitutional Design, 123 HARV. L. REV. 617 (2010)

    Week 4 (Oct. 6): Promoting Democratic Deliberation

    Mark Seidenfeld, A Civic Republican Justification for the Bureaucratic State, 105 HARV. L. REV. 1511 (1992)

    Elizabeth Garrett & Adrian Vermeule, Institutional Design of a Thayerian Congress, 50 DUKE L.J. 1277 (2001)

    William N. Eskridge, Jr. & John Ferejohn, Constitutional Horticulture: Deliberation-Respecting Judicial Review, 87 TEX. L. REV. 1273 (2009)

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    Week 5 (Oct. 13): Legislative Process and the Prevention of Legislative Capture

    John O. McGinnis & Michael B. Rappaport, Supermajority Rules as Constitutional Solution, 40 WM. & MARY L. REV. 365 (1999)

    Elizabeth Garrett, A Fiscal Constitution with Supermajority Voting Rules, 40 WM. & MARY L. REV. 471 (1999)

    Jacob E. Gersen & Eric A. Posner, Timing Rules and Legal Institutions, 121 HARV. L. REV. 543 (2007)

    Part II: Institutional Design and Constrained Government Week 6 (Oct. 20): Protecting Political Minorities

    Heather K. Gerken, Second-Order Diversity, 118 HARV. L. REV. 1099 (2005) Daryl J. Levinson, Rights and Votes (2011 draft)

    Week 7 (Oct. 27): The Problem of Credible Pre-Commitment

    Daryl J. Levinson, Parchment and Politics: The Puzzle of Constitutional Commitment, 124 HARV. L. REV. 657 (2011)

    Josh Chafetz, The Political Animal and the Ethics of Constitutional Commitment, 124 HARV. L. REV. F. 1 (2011)

    Bruce Ackerman, The Emergency Constitution, 113 YALE L.J. 1029 (2004) Adrian Vermeule, Self-Defeating Proposals: Ackerman on Emergency Powers, 75 FORDHAM L. REV.

    631 (2006) Week 8 (Nov. 3): Judicial Enforcement of Constitutional Restraints

    Frank B. Cross, Institutions and Enforcement of the Bill of Rights, 85 CORNELL L. REV. 1529 (2000)

    Matthew C. Stephenson, The Price of Public Action: Constitutional Doctrine and the Judicial Manipulation of Legislative Enactment Costs, 118 YALE L.J. 2 (2008)

    Part III: Institutional Design and Smart Government Week 9 (Nov. 10): Rational Information Acquisition

    Anne Joseph OConnell, The Architecture of Smart Intelligence: Structuring and Overseeing Agencies in the Post-9/11 World, 94 CAL. L. REV. 1655 (2006)

    Matthew C. Stephenson, Information Acquisition and Institutional Design, 124 HARV. L. REV. 1422 (2011)

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    Week 10 (Nov. 17): Learning, Experimentation, and Innovation

    Yair Listokin, Learning Through Policy Variation, 118 YALE L.J. 480 (2008) Jacob E. Gersen, Temporary Legislation, 74 U. CHI. L. REV. 247 (2007) Brian Galle & Joseph Leahy, Laboratories of Democracy? Policy Innovations in Decentralized

    Governments, 58 EMORY L.J. 1333 (2009) Week 11 (Dec. 1): Combating Cognitive Bias

    Mark Seidenfeld, Cognitive Loafing, Social Conformity, and Judicial Review of Agency Rulemaking, 87 CORNELL L. REV. 486 (2002)

    Jeffrey J. Rachlinski & Cynthia R. Farina, Cognitive Psychology and Optimal Government Design, 87 CORNELL L. REV. 549 (2002)

    William N. Eskridge, Jr. & John Ferejohn, Structuring Lawmaking to Reduce Cognitive Bias: A Critical View, 87 CORNELL L. REV. 616 (2002)

    Conclusion: Institutional Complexity Week 12 (Dec. 8): System Effects and Unintended Consequences

    Adrian Vermeule, Forward: System Effects and the Constitution, 123 HARV. L. REV. 4 (2009) William J. Stuntz, The Political Constitution of Criminal Justice, 119 HARV. L. REV. 780 (2006) David Alan Sklansky, Killer Seatbelts and Criminal Procedure, 119 HARV. L. REV. F. 56 (2006) Robert Weisberg, First Causes and the Dynamics of Criminal Justice, 119 HARV. L. REV. F. 131

    (2006) William J. Stuntz, Of Seatbelts and Sentences, Supreme Court Justices and Spending Patterns

    Understanding the Unraveling of American Criminal Justice, 119 HARV. L. REV. F. 148 (2006)