Law and the Limits of Reason
Human reason is limited. Given the scarcity of reason, how should the power to make constitutional law be allocated among legislatures, courts and the executive, and how should legal institutions be designed? In Law and the Limits of Reason, Adrian Vermeule denies the widespread view, stemming from Burke and Hayek, that the limits of reason counsel in favor of judges making "living" constitutional law in the style of the common law. Instead, he proposes and defends a "codified constitution" - a regime in which legislatures have the primary authority to develop constitutional law over time, through statutes and constitutional amendments.
Vermeule contends that precisely because of the limits of human reason, large modern legislatures, with their numerous and highly diverse memberships and their complex internal structures for processing information, are the most epistemically effective lawmaking institutions.
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Justices and Company
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adjudication aggregation amendment process argue assumption autarkic average competence benefits Bentham Benthamite better Burkean cascades Chapter claim codified constitution common-law constitution common-law constitutionalism common-law constitutionalists Condorcet Condorcetian constitutional amendment constitutional common law constitutional law costs critique deadweight losses decisionmaking decisions deference deliberation discussed domain Econ economic efficiency epis epistemic argument epistemic competence epistemic legalism epistemically superior evolutionary expertise formal amendment framers H.L.A. Hart Hayek Hayekian Informational Cascades institutional interpretation of Burke invisible-hand issues Jeremy Waldron Jon Elster judgments Jury Theorem knowledge latent wisdom lawyer-justices lawyers lay justices legal rules legal theory legislative limits of reason major many-minds arguments mechanisms ment minds models nonlawyers nonlegal optimal ordinary common law plausible political precedent or tradition problem professional diversity question rational rational ignorance relevant right answer Ronald Dworkin social spontaneous order statutes suggest Sunstein supra note Supreme Court temic tion tional vote voters wisdom of crowds