Samuel Issacharoff

Regulation for Conservatives: Behavioral Economics and the Case for 'Asymmetric Paternalism'

Regulation by the state can take a variety of forms. Some regulations are aimed entirely at redistribution, such as when we tax the rich and give to the poor. Other regulations seek to counteract externalities by restricting behavior in a way that imposes harm on an individual basis but yields net societal benefits. A good example is taxation to fund public goods such as roads. In such situations, an individual would be better off if she alone were exempt from the tax; she benefits when everyone (including herself) must pay the tax.

Self-Serving Assessments of Fairness and Pretrial Bargaining

A persistently troubling question in the legal-economic literature is why cases proceed to trial. Litigation is a negative-sum proposition for the litigants-the longer the process continues, the lower their aggregate wealth. Although civil litigation is resolved by settlement in an estimated 95 percent of all disputes, what accounts for the failure of the remaining 5 percent to settle prior to trial?

Where to Draw the Line?: Judicial Review of Political Gerrymanders

A striking feature of the post-2000 redistricting is not only the continued - indeed, ever-increasing - vigor of partisan line drawing, but the array of doctrinal tools litigators and courts have invoked in attempts to rein it in: Article I; the First Amendment; the equal protection clause of the Fourteenth Amendment in a wide range of flavors; the Voting Rights Act of 1965; and a variety of state-law principles.We offer a preliminary reaction to the Courts decisions in Vieth v. Jubelirer, 124 S.Ct. 1769 (2004), and Cox v. Larios, 124 S.Ct. 2806 (2004), that places those decisions in the broader context of the Courts failure to confront ends-oriented redistricting practices. In Vieth, four justices declared claims of excessive partisanship nonjusticiable. And yet, three of those justices were soon part of an eight-Justice majority that agreed in Larios to summarily affirm a lower court decision striking down a plan on the grounds that relatively small population deviations were constitutionally impermissible because they reflected blatantly partisan protection of Democratic incumbents while undermining Republican-held seats.Our central claims are two-fold. First, no matter how difficult judicial review of political gerrymandering claims may be, it is impossible actually to render such claims nonjusticiable. The availability of a range of unavoidable doctrinal claims means that a significant number of the partisan gerrymanders that courts find constitutionally offensive - whatever that term means, and whether it even has any agreed-upon meaning - will come before courts, and lack of candor about what courts are doing may carry its own costs.Second, the treatment of political gerrymander cases as a species of antidiscrimination claim obscures a central issue of democratic theory. The Supreme Courts initial refusal to enter the political thicket rested on its view that malapportionment suits challenge not a private wrong, but a wrong suffered by [the state] as a polity. The Warren Court Reapportionment Cases responded by declaring that malapportionment claims are individual and personal in nature. Ironically, both courts were half right. Claims of malapportionment are really not individual rights claims; they are claims about governmental structure. And yet, these claims are especially appropriate for judicial review. Forty years of doctrinal development has failed to take into account this central point. Partisan gerrymandering claims are treated as an assertion that a political party has been unfairly denied some number of seats. But given the near-universal practices of single-member legislative districts and incumbent protection, partisan gerrymandering cases seek essentially a reallocation of safe seats. The Courts recent opinions ignore almost entirely the question whether judicial intervention should be directed at entrenchment itself, rather than the question of who gets to be entrenched. If the Courts intervention is prompted by these latter sorts of claims, it may simply exacerbate the pathologies of our current redistricting process.

Disclosure, Agents, and Consumer Protection

Consumers make mistakes, and sophisticated market actors exploit those mistakes. Efforts to promote consumer protection through soft paternalistic interventions, most notably improved disclosure regimes, run into the problem that consumers are overwhelmed by information and may not to invest the time and effort necessary to take advantage of more information. This paper reviews recent attempts to protect consumers without recourse to command-and-control regulation. Instead of further overwhelming consumers with information, this paper proposes that efforts to aid beleaguered consumers should take the form of facilitating a market for intermediaries where independent agents or competitive firms have incentives to assist consumer protection.

Introduction: The Burden of Modern Democracy

Twenty five years after the fall of the Berlin Wall, the democratic ascendency of the post-Soviet era is under severe challenge. While fragile democracies in Eastern Europe, Africa, and East Asia face renewed threats, the world has witnessed the failed democratic promises of the Arab Spring. What lessons can be drawn from these struggles? What conditions or institutions are needed to prevent the collapse of democracy?Embattled democracy is the subject matter of a new book, Fragile Democracies: Contested Power in the Era of Constitutional Courts. This book argues that the most distinctive antidote to authoritarianism in the post-1989 period is the presence of strong constitutional courts. A signature feature of the third wave of democratization, these courts serve as a bulwark against vulnerability to external threats as well as a catalyst for the internal consolidation of power. Particularly in societies still riven by deep divisions of race, religion, or national background, courts have become pivotal actors in allowing democracy to take root. The introductory chapters is presented here.

The American Paradox

In 2010, retired Justice Albie Sachs of the South African Constitutional Court was giving a series of lectures on his recently published autobiography, The Strange Alchemy of Life and Law . As part of that series, Justice Sachs came to New York University School of Law, where I teach, for a public event on the role of a constitutional court with my colleague Jeremy Waldron and myself. Our inquiry was on the role of a court in the transition from an unjust to a just regime, and on how a court addresses the question of the frailties of an emerging democratic society. Jeremy Waldron is famously protective of the dignity of the legislative process and critical of judicial review of legislative enactments. My views, as will be evident from this book, are notably different, and I defend the importance of judicial oversight of some of the characteristic vulnerabilities of democratic rule. The discussion with Justice Sachs grounded the divide in the role of courts in the South African experience. The South African Constitutional Court has actively engaged the political process during the transition process and beyond, a theme I develop in subsequent chapters. Alone among courts anywhere in the world, the constitutional court was tasked with assessing the first draft of the constitution for its conformity with core democratic principles, and indeed found the draft wanting. This was the worlds first unconstitutional constitution. While Justice Sachs strongly defended the active role of the South African court in the transition from apartheid to multiethnic democratic rule, he was cautious about the relation between the emerging South African jurisprudence and American constitutional doctrines. According to Justice Sachs, it was difficult in any new democracy to resist the gravitational pull of American constitutional law, particularly for an English-language constitutional court. It was not simply the longevity of American democracy and the U.S. Constitution, but the commanding language and arguments honed by the U.S. Supreme Court over centuries of constitutional debate.

Antidiscrimination in Employment: The Simple, the Complex, and the Paradoxical

Employment discrimination law has come a long way since it confronted the simple exclusion of minorities or women from desirable positions in the workforce. The expansion of protected groups and the dismantling of the more overt forms of exclusions has strained the antidiscrimination norm embodied by Title VI of the Civil Rights Act of 1964. As the law expanded the class of protected workers, its redistributive aims grew more pronounced. This chapter of a forthcoming handbook on the economic foundations of labor and employment law and provides an overview of this shift, focusing on the Age Discrimination in Employment Act, the Pregnancy Discrimination Act, and the Americans with Disabilities Act. With each further expansion of the reach of employment discrimination laws, the relation between bias and what may be termed employers’ economically rational discrimination became a more significant part of the case law. This chapter addresses some of the underlying labor economic issues as civil rights laws confront accommodation requirements and redistributive aims. The chapter will be published in The Law and Economics of Labor and Employment Law, edited by Cynthia Estlund and Michael L. Wachter and published by Edward Elgar.

Private Claims, Aggregate Rights

In an odd set of procedure opinions last Term, the Supreme Court found itself confronted with the inadequacy of the federal rules for dealing with the sprawling array of aggregate disputes that currently engage the courts. Taken on their own terms, the three cases - Sprint Communications Co., L.P. v APCC Services, Inc, Republic of the Philippines v Pimentel, and Taylor v Sturgell - broke little new ground. Even the topics presented - real parties in interest, required parties, and non-party preclusion - are hardly the stuff of future debates over potential Supreme Court nominees.Nonetheless, each of these cases presented privately held legal claims that could not be litigated to resolution absent aggregation with the claims of other parties. In each case, the formal workings of the procedural system were inadequate to the task. This Article contrasts the formalism of federal court procedural doctrines to the flexibility of bankruptcy workouts for asbestos claims and court-supervised private settlements, as in the recent Vioxx settlement. In the latter examples, courts have used more flexible principles of equity to oversee privately-ordered mass settlements. The article explores both the benefits and the limits of such private ordering in order to highlight the limitations on court-administration of mass harm litigation.

Due Process in Law

This article assesses the history of the concept of due process in Anglo-American jurisprudence. While the actual phrase ‘due process of law’ first appeared in the Magna Carta, the concept of due process was transformed when the American colonists adopted it as a limiting principle not only on the use of executive power but also on the scope of the laws that could be passed. Due process protects substantive rights by requiring procedural regularity in the exercise of governmental power and insists that procedural regularity may not be altered by the normal operations of political power. In the twentieth century, due process law in the United States developed in three central phases – substantive, procedural, and functional due process – and these trends continue into the twenty-first century.