Judge Posner\u27s Jurisprudence of Skepticism

This essay suggests that there is an instructive incompleteness in Judge Posner\u27s transition from scientific observer to legal actor. His legal skepticism should be understood as a legacy of his days as an inquiring economist, observing and forming beliefs about law and the judicial process from the academy. His affirmation of judicial practices stems from his new respect for practical reason, which seems to result from the experience of performing judicial duties. This essay will argue that a more complete assimilation of the practical perspective of the legal actor would undercut Judge Posner\u27s arguments for legal skepticism

A Lesson on Some Limits of Economic Analysis: Schwartz and Scott on Contract Interpretation

Contract interpretation has been a hot topic of scholarly debate since 2003, when Professors Alan Schwartz of Yale and Robert E. Scott of Columbia published their provocative article, Contract Theory and the Limits of Contract Law, much of which develops an efficiency theory of contract interpretation. In 2010, they published a restatement of this theory and reply to critics, which has not yet drawn much commentary. This Article suggests that, even as restated, their theory offers an object lesson on some limits of economic analyses of the law. The Article assumes that their central argument is mathematically and economically impeccable. It suggests, however, that the theory nonetheless fails. Their central argument rests on a naïve understanding of the nature of language and the legal context of contract interpretation. Their efficiency claim neglects an alternative theory that does not rest on economics, but that probably would support a more efficient law. And their basic premise—that efficiency should be the sole goal of a law for business contracts—makes the theory strikingly vulnerable. In particular, virtually everyone, Schwartz and Scott included, agrees that rule of law values should constrain all laws. When considered, however, they doom Schwartz and Scott’s interpretation theory, as they may doom any monist theory

New Judicial Hostility to Arbitration: Federal Preemption, Contract Unconscionability, and Agreements to Arbitrate, The

Part I of this Article sketches the basics of arbitration law and practice, and traces the development of the federal policy favoring arbitration, to establish a basis for evaluating contemporary judicial decisions. Part II examines the justification for the policy favoring arbitration and the reasons contracting parties may prefer arbitration. Part III evaluates the reasons courts give for finding arbitration agreements in employment and consumer contexts unconscionable, and therefore, unenforceable. The conclusion is that many courts make many clearly erroneous decisions, including decisions that are unconstitutional because they are preempted

Collapsing Illusions: Standards for Setting Efficient Contract and Other Defaults

In this Essay, Professor Burton analyzes and evaluates four commonly used standards for setting efficient default rules and standards. Based on two theoretical insights, he shows that three of them collapse upon analysis into the fourth, a Coasian standard that turns out to be a dead end. The theoretical upshot is that the Coase Theorem often is a good reason to use defaults rather than mandatory rules or standards. But neither the theorem nor reference to a transaction-costless world sustains particular defaults. To set an efficient default, the law should guide courts toward supplying terms that parties should have adopted to generate a surplus from the term or a cluster of related clauses

Thermalization, Error-Correction, and Memory Lifetime for Ising Anyon Systems

We consider two-dimensional lattice models that support Ising anyonic excitations and are coupled to a thermal bath. We propose a phenomenological model for the resulting short-time dynamics that includes pair-creation, hopping, braiding, and fusion of anyons. By explicitly constructing topological quantum error-correcting codes for this class of system, we use our thermalization model to estimate the lifetime of the quantum information stored in the encoded spaces. To decode and correct errors in these codes, we adapt several existing topological decoders to the non-Abelian setting. We perform large-scale numerical simulations of these two-dimensional Ising anyon systems and find that the thresholds of these models range between 13% to 25%. To our knowledge, these are the first numerical threshold estimates for quantum codes without explicit additive structure.Comment: 34 pages, 9 figures; v2 matches the journal version and corrects a misstatement about the detailed balance condition of our Metropolis simulations. All conclusions from v1 are unaffected by this correctio