Copyright (c) 2009 All rights reserved. http://works.bepress.com/saul_levmore Recent documents in Saul Levmore en-us Sat, 01 Aug 2009 14:52:32 PDT 3600 http://works.bepress.com/saul_levmore/3 http://works.bepress.com/saul_levmore/3 Thu, 30 Jul 2009 14:52:26 PDT Interest Groups and the Problem with Incrementalism Saul Levmore* Abstract Incrementalism, as opposed to dramatic change, in law is conventionally lauded as the prudent path of change, and one that gives credit to history and precedent. But the conventional view pays little attention to interest groups. There is a serious problem with step-by-step change when it will alter the constellation of supporters and opponents of further moves. The core problem is that once an interest group loses and is subject to some regulation, it has reason to turn on its competitors and encourage similar regulation of them. There is little reason to be confident that the laws that emerge on the incrementalist's path represent progress towards socially desirable or democratic outcomes. Examples include smoking bans, disability accommodations, and minimum age legislation, but nearly all law can be seen as incrementalist, just as most tradeoffs might be described as on slippery slopes. The incrementalism problem is most striking where a prior regulatory step is, from the perspective of those who must comply, irreversible. The problem is reduced where there is real learning-from-experience; it is enlarged where advocates of change have a divide-and-conquer strategy to separate defending interests. It is possible that compensation policies, or even moratoria on certain kinds of regulation, can be used to decrease wasteful rent-seeking and to minimize the interest group, or incrementalism, problem itself. Saul Levmore Legislation Politics Public Law and Legal Theory http://works.bepress.com/saul_levmore/2 http://works.bepress.com/saul_levmore/2 Wed, 15 Nov 2006 14:02:11 PST This article takes on the puzzle of why many appellate courts insist on an outright (but simple) majority decision as to the immediate outcome or disposition of a case, while tolerating a plurality decision as to the precedential message, or reasoning, attached to a case. Somewhat similarly, pluralities are respected in many political settings but then not, for example, in legislative assemblies. The argument builds both on the Condorcet Jury Theorem and on the problem of dealing with voting paradoxes, or cycles. It links decision rules with the likelihood of cycling and the danger of misconstruing majority decisions. Saul Levmore http://works.bepress.com/saul_levmore/1 http://works.bepress.com/saul_levmore/1 Wed, 15 Nov 2006 14:02:10 PST The attacks of September 11th produced staggering losses of life and property. They also brought forth substantial private insurance payouts, as well as federal relief for the City of New York and for the families of individuals who perished on that day. The losses suffered in and after the attacks, and the structure of the relief effort, have raised questions about the availability of insurance against terrorism, the role of government in providing for, subsidizing, or ensuring the presence of such insurance, and the interaction between relief and the incentives for future precaution taking. In response to such losses, and in anticipation of others, one might imagine a range of government responses from nonintervention, to subsidized private insurance, to after-the-fact government payments of a fixed or uncertain kind, and so forth. This Article argues that the particular mix responses the government has chosen with respect to 9/11, including the September 11th Victims' Compensation Fund and the Terrorism Risk Insurance Act of 2002, will significantly affect private expectations about the government's response to future terrorist attacks. One aim of this Article is to explore the relationships between promised or expected government actions (or inactions) and private decisions regarding terrorism risk. These issues lead to some novel ideas about the role of government in insuring against terrorism -- and then against crime more generally. Part II provides some background on the response of the private insurance market and the federal government to the losses resulting from September 11th. Part III looks at the positive question of how government and private actors should be expected to respond to the losses of 9/11 and to the prospect of future such losses. It explores the interactions among government relief and charitable responses to 9/11 as well as the existence or absence of private insurance, and draws contrasts between terrorism disasters and natural disasters, as well as between 9/11 and prior terror attacks. Part III also analyzes the circumstances in which episodic relief of the 9/11 variety will lead to (or be replaced by) more permanent, routinized relief, as is available in some other countries. Part IV takes up the normative question of the optimal mix of government and private relief (including insurance) for terrorism-related losses. It provides a skeptical view of government intervention in property insurance markets, quite generally, and of the particular federal terrorism reinsurance regime that Congress recently adopted. But Part V then broadens the inquiry by asking whether the case for government-sponsored insurance against crime which is to say a much broader set of crimes than terrorism alone is at least as sound as that for terrorism-related risks. Part VI concludes. Saul Levmore Insurance Law Law and Economics