Publication Date
2013
Publication Title
Public Law & Legal Theory
Abstract
In a typical pattern in the literature on public law, the diagnostic sections of a paper draw upon political science, economics or other disciplines to offer deeply pessimistic accounts of the motivations of relevant actors in the legal system. The prescriptive sections of the paper, however, then issue an optimistic proposal that the same actors should supply public-spirited solutions. Where the analyst makes inconsistent assumptions about the motivations of actors within the legal system, equivocating between external and internal perspectives, an inside/outside fallacy arises. We identify the fallacy, connect it to an economics literature on the "determinacy paradox," and elicit its implications for the theory of public law.
Number
422
Recommended Citation
Eric Posner & Adrian Vermeule, "Inside or Outside the System?" (University of Chicago Public Law & Legal Theory Working Paper No. 422, 2013).
Additional Information
Chicago Unbound includes both works in progress and final versions of articles. Please be aware that a more recent version of this article may be available on Chicago Unbound, SSRN or elsewhere.