The Questions of Authority

In 1992, Professor, Frederick Schauer of Harvard University, delivered the Georgetown Law Center’s twelfth Annual Philip A. Hart Memorial Lecture: Two Cheers for Authority: Should Officials Obey the Law?. Frederick Schauer is a David and Mary Harrison Distinguished Professor of Law at the University of Virginia. Previously he served for 18 years as Frank Stanton Professor of the First Amendment at the John F. Kennedy School of Government, Harvard University, where he has served as academic dean and acting dean, and before that was a Professor of Law at the University of Michigan. He is the author of The Law of Obscenity (BNA, 1976), Free Speech: A Philosophical Enquiry (Cambridge, 1982), Playing By the Rules: A Philosophical Examination of Rule-Based Decision-Making in Law and in Life (Clarendon/Oxford, 1991), Profiles, Probabilities, and Stereotypes (Belknap/Harvard, 2003), and Thinking Like a Lawyer: A New Introduction to Legal Reasoning (Harvard, 2009). He is also co-editor of The Philosophy of Law: Classic and Contemporary Readings (1996) and The First Amendment: A Reader (1995), and author of numerous articles on constitutional law and theory, freedom of speech and press, legal reasoning and the philosophy of law. Schauer is a fellow of the American Academy of Arts and Sciences, has held a Guggenheim Fellowship, has been vice-president of the American Society for Political and Legal Philosophy and chair of the Committee on Philosophy and Law of the American Philosophical Association, and was a founding co-editor of the journal Legal Theory. He has also been the Fischel-Neil Distinguished Visiting Professor of Law at the University of Chicago, Ewald Distinguished Visiting Professor of Law at the University of Virginia, Morton Distinguished Visiting Professor of the Humanities at Dartmouth College, Distinguished Visiting Professor of Law at the University of Toronto, and Distinguished Visitor at the New York University School of Law. His work on rules, legal reasoning, constitutional theory and freedom of speech has been the subject of a book Rules and Reasoning: Essays in Honour of Fred Schauer (Hart, 1999) and symposia in Politeia, the Harvard Journal of Law and Public Policy, and the Notre Dame, Connecticut, and Quinnipiac law reviews. In 2007-08 Schauer was the George Eastman Visiting Professor at Oxford University and a fellow of Balliol College. A graduate of Dartmouth College, the Amos Tuck School of Business Administration, and Harvard Law School, Schauer was the recipient of a university-wide Distinguished Teacher Award from Harvard University in 2004

The Politics and Incentives of Legal Transplantation

The last ten years have seen an exponential increase in the volume of legal transplantation, the process by which laws and legal institutions developed in one country are then adopted by another. Although there is a small literature on the process of legal transplantation, most of that literature presumes that the expected efficacy of the law is the predominant factor in determining which laws are transplanted, from where, and to where. This exploratory paper ventures a series of quite different hypotheses, all premised on the view that donor countries, recipient countries, and third parties (such as NGOs) have political, economic, and reputational incentives that are likely to be important factors in determining the patterns of legal transplants. The paper offers a number of hypotheses about these possible efficacy-independent factors, gives examples to support the possibility that the hypotheses might be sound, and suggests ways in which the hypotheses might be tested in a more systematic way.legal transplants, legal development, legal change

The Trouble with Cases

For several decades now a debate has raged about policy-making by litigation. Spurred by the way in which tobacco, environmental, and other litigation has functioned as an alternative form of regulation, the debate asks whether policy-making or regulation by litigation is more or less socially desirable than more traditional policy-making by ex ante rule-making by legislatures or administrative agencies. In this paper we step into this debate, but not to come down on one side or another, all things considered. Rather, we seek to show that any form of regulation that is dominated by high-salience particular cases is highly likely, to make necessarily general policy on the basis of unwarranted assumptions about the typicality of one or a few high-salience cases or events. Two cornerstone concepts of behavioral decision--the availability heuristic and related problems of representativeness--explain this bias. This problem is virtually inevitable in regulation by litigation, yet it is commonly found as well in ex ante rule-making, because such rule-making increasingly takes place in the wake of, and dominated by, particularly notorious and often unrepresentative outlier events. In weighing the net advantages of regulation by ex ante rule-making against those of regulation by litigation, society must recognize that any regulatory form is less effective insofar as it is unable to transcend the distorting effect of high-salience unrepresentative examples.

Asymptotics of trimmed CUSUM statistics

There is a wide literature on change point tests, but the case of variables with infinite variances is essentially unexplored. In this paper we address this problem by studying the asymptotic behavior of trimmed CUSUM statistics. We show that in a location model with i.i.d. errors in the domain of attraction of a stable law of parameter $0<\alpha <2$, the appropriately trimmed CUSUM process converges weakly to a Brownian bridge. Thus, after moderate trimming, the classical method for detecting change points remains valid also for populations with infinite variance. We note that according to the classical theory, the partial sums of trimmed variables are generally not asymptotically normal and using random centering in the test statistics is crucial in the infinite variance case. We also show that the partial sums of truncated and trimmed random variables have different asymptotic behavior. Finally, we discuss resampling procedures which enable one to determine critical values in the case of small and moderate sample sizes.Comment: Published in at http://dx.doi.org/10.3150/10-BEJ318 the Bernoulli (http://isi.cbs.nl/bernoulli/) by the International Statistical Institute/Bernoulli Society (http://isi.cbs.nl/BS/bshome.htm