The Constitution Of Risk

The Constitution of Risk is the first book to combine constitutional theory with the theory of risk regulation. The book argues that constitutional rulemaking is best understood as a means of managing political risks. Constitutional law structures and regulates the risks that arise in and from political life, such as an executive coup or military putsch, political abuse of ideological or ethnic minorities, or corrupt self-dealing by officials. The book claims that the best way to manage political risks is an approach it calls "optimizing constitutionalism" - in contrast to the worst-case thinking that underpins "precautionary constitutionalism," a mainstay of liberal constitutional theory. Drawing on a broad range of disciplines such as decision theory, game theory, welfare economics, political science, and psychology, this book advocates constitutional rulemaking undertaken in a spirit of welfare maximization, and offers a corrective to the pervasive and frequently irrational attitude of distrust of official power that is so prominent in American constitutional history and discourse.

A Washington Post Notable Book of the Year A New York Times Book Review Editors’ Choice An award-winning constitutional law scholar at the University of Chicago (who clerked for Judge Merrick B. Garland, Justice Stephen Breyer, and Justice Sandra Day O’Connor) gives us an engaging and alarming book that aims to vindicate the rights of public school stu­dents, which have so often been undermined by the Supreme Court in recent decades. Judicial decisions assessing the constitutional rights of students in the nation’s public schools have consistently generated bitter controversy. From racial segregation to un­authorized immigration, from antiwar protests to compul­sory flag salutes, from economic inequality to teacher-led prayer—these are but a few of the cultural anxieties dividing American society that the Supreme Court has addressed in elementary and secondary schools. The Schoolhouse Gate gives a fresh, lucid, and provocative account of the historic legal battles waged over education and illuminates contemporary disputes that continue to fracture the nation. Justin Driver maintains that since the 1970s the Supreme Court has regularly abdicated its responsibility for protecting students’ constitutional rights and risked trans­forming public schools into Constitution-free zones. Students deriving lessons about citizenship from the Court’s decisions in recent decades would conclude that the following actions taken by educators pass constitutional muster: inflicting severe corporal punishment on students without any proce­dural protections, searching students and their possessions without probable cause in bids to uncover violations of school rules, random drug testing of students who are not suspected of wrongdoing, and suppressing student speech for the view­point it espouses. Taking their cue from such decisions, lower courts have upheld a wide array of dubious school actions, including degrading strip searches, repressive dress codes, draconian “zero tolerance” disciplinary policies, and severe restrictions on off-campus speech. Driver surveys this legal landscape with eloquence, highlights the gripping personal narratives behind landmark clashes, and warns that the repeated failure to honor students’ rights threatens our basic constitutional order. This magiste­rial book will make it impossible to view American schools—or America itself—in the same way again.

We see the stories in the newspaper nearly every day: a drug hailed as a breakthrough treatment turns out to cause harmful side effects; controls implemented to reduce air pollution are shown to generate hazardous solid waste; bans on dangerous chemicals result in the introduction of even more risky substitutes. Could our efforts to protect our health and the environment actually be making things worse? In Risk versus Risk, John D. Graham, Jonathan Baert Wiener, and their colleagues at the Harvard Center for Risk Analysis marshal an impressive set of case studies which demonstrate that all too often our nation's campaign to reduce risks to our health and the environment is at war with itself.

In this book, Adrian Vermeule shows that any approach to legal interpretation rests on institutional and empirical premises about the capacities of judges and the systemic effects of their rulings. He argues that legal interpretation is above all an exercise in decisionmaking under severe empirical uncertainty.

In this book the authors demonstrate how the economics of insurance, risk reduction, and damage control or limitation can be combined with concepts of collective choice and collective behavior to improve analysis of the escalating threats faced by alliances throughout the world. The book develops a theory of risk management as integrating likelihood of loss, magnitude of loss, and isolation from loss into a consolidated model. It extends existing concepts of individual risk management by a single person to decision theory for an entire country, managed by a government bureaucracy and lodged in a universe of overlapping alliances. The authors uncover a tendency, inherent in any bureaucracy for policy coordination in the realm of risk control to fail because of misunderstanding, disinterest, or perverse incentives. Understanding such incentives is essential to any sort of progress in risk management of proliferating national and global threats. Self-protection aims to reduce the chances of loss. This reduction may require the use, or threat or promise of use, of defensive military weapons or, depending on context, the use of offensive military weapons. Japan's constitution limits Japan to use of defensive measures only, even if Japan and the USA have formed a military alliance. This places Japan at an “economic corner solution” of providing only self-insurance. However, the Abe government intends to change the interpretation of the constitution so that Japan can provide a full range of self-protection as well as self-insurance. With the prospect of such constitutional change, this book becomes of special relevance to Japan's national security.

Bold and unconventional, this book advocates for an institutional turn-about in the relationship between democracy and constitutionalism.

Breaking the Vicious Circle is a tour de force that should be read by everyone who is interested in improving our regulatory processes. Written by a highly respected federal judge, who obviously recognizes the necessity of regulation but perceives its failures and weaknesses as well, it pinpoints the most serious problems and offers a creative solution that would for the first time bring rationality to bear on the vital issue of priorities in our era of limited resources.

A bold call to reclaim an American tradition that argues the Constitution imposes a duty on government to fight oligarchy and ensure broadly shared wealth. Oligarchy is a threat to the American republic. When too much economic and political power is concentrated in too few hands, we risk losing the Òrepublican form of governmentÓ the Constitution requires. Today, courts enforce the Constitution as if it has almost nothing to say about this threat. But as Joseph Fishkin and William Forbath show in this revolutionary retelling of constitutional history, a commitment to prevent oligarchy once stood at the center of a robust tradition in American political and constitutional thought. Fishkin and Forbath demonstrate that reformers, legislators, and even judges working in this Òdemocracy of opportunityÓ tradition understood that the Constitution imposes a duty on legislatures to thwart oligarchy and promote a broad distribution of wealth and political power. These ideas led Jacksonians to fight special economic privileges for the few, Populists to try to break up monopoly power, and Progressives to fight for the constitutional right to form a union. During Reconstruction, Radical Republicans argued in this tradition that racial equality required breaking up the oligarchy of slave power and distributing wealth and opportunity to former slaves and their descendants. President Franklin Roosevelt and the New Dealers built their politics around this tradition, winning the fight against the Òeconomic royalistsÓ and Òindustrial despots.Ó But today, as we enter a new Gilded Age, this tradition in progressive American economic and political thought lies dormant. The Anti-Oligarchy Constitution begins the work of recovering it and exploring its profound implications for our deeply unequal society and badly damaged democracy.