Faculty Bibliography
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The U.S. Supreme Court has now decided 14 antitrust cases in a row in favor of the defendant. But this does not indicate an embrace of the con- servative Chicago School over the moderate Harvard School. To the contrary, on every issue the Court has addressed where those two schools are in conflict,the Supreme Court has sided with the Harvard School. It has also sided with sound antitrust economics rather than with formalisms favoring plaintiffs or defendants.
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Einer R. Elhauge, Can Health Law Become a Coherent Field of Law?, 41 Wake Forest L. Rev. 365 (2006).
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One puzzlement of statutory interpretation is that so many statutory canons run contrary to likely legislative preferences, sound policy, or even the judicial self-interest in avoiding being legislatively overridden. The first conflict seems inconsistent with honest agent theories of interpretation, including theories (like mine) that counsel judges to resolve statutory uncertainty in ways that maximize the satisfaction of enactable political preferences. The second conflict seems inconsistent with traditional legal models of interpretation that assume judges should exercise their own policy judgment in resolving statutory uncertainty. The third conflict seems inconsistent with more cynical modern rational choice models that assume judges try to push their own ideological views as far as they can without being overruled. These puzzlements are deepened by the commonplace observation that judges do not consistently apply these canons but often ignore them or apply counter-canons. This article argues that the solution to these puzzlements is to understand many canons as preference-eliciting statutory default rules, which maximize the satisfaction of enactable political preferences by eliciting a legislative reaction that eliminates uncertainty about what those preferences are. Such preference-eliciting default rules will, however, enhance political satisfaction only when one interpretive default rule is sufficiently more likely to elicit a legislative response to outweigh a weak estimate that another interpretation might better match enactable preferences. The seemingly inconsistent application of these canons can then be explained because this theory indicates these canons should not be uniformly applied but rather should be (and generally are) applied only in cases where these limited conditions are satisfied. Where the preferences of neither the enacting nor current legislatures can be reliably estimated or elicited, courts should and do use default rules that track the preferences of political subunits or, where that is unavailing, that limit the variance of judicial judgment. Various alternative default rules - like interpreting all statutory ambiguities to disfavor interest groups, protect reliance interests, or reduce the effect or change caused by the statute - should be rejected because they are not limited to cases where they satisfy the conditions for maximizing political satisfaction but rather advance one view on substantive controversies that the political process is supposed to resolve.
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It is commonly assumed that statutory indeterminancy must be resolved by judicial judgment. This Article argues that where hermeneutics gives out, statutory indeterminancy instead can, is, and should be resolved by default rules designed to minimize the expected dissatisfaction of enactable preferences. This probabilistic goal justifies many judicial practices such as broad-ranging inquiries into legislative history even if it does not accurately reveal any shared legislative intent. It also often supports adopting moderate interpretations even when more extreme interpretations are more likely to match legislative preferences. Further, while the general default rule normally requires estimating enacting legislative preferences, the enacting legislature itself would prefer to shift to a default rule of tracking current legislative preferences when those can be reliably ascertained from official action. The basic reason is that the enacting legislature would prefer influence over the interpretation of the entire stock of statutes being interpreted while it is office rather than influence over the future interpretation (when it is out of office) of the statutory ambiguities that exist on the few topics for which it made enactments. Such a current preferences default rule explains many cases that rely on subsequent legislative action despite its hermeneutic irrelevance, and explains both the general doctrine of deference to agency interpretations and the pattern of exceptions to that deference.
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Comments on the essay by Gary Rosen about the U.S. Supreme Court decision on the case Bush versus Gore that ended the dispute in the 2000 presidential election.
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Defends the use of vouchers in exchange for Medicare benefits proposed by Republicans in a reform bill in the U.S. Congress. Contribution of Medicare funding waste to problems in the national budget; Other competing reform bills proposed in Congress; Source of Medicare funding deficit; Effect of medical inflation on the national medical costs per person; Objections raised against vouchers; Advantage of requiring health plans to spend all collected vouchers amounts to health care.
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