Inside or Outside the System?

Eric A. Posner 

University of Chicago - Law School

Adrian Vermeule 

Harvard Law School 
March 12, 2013

U of Chicago, Public Law Working Paper No. 422 
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.

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2232153