Legal Theory

Discretion

Vol. 127 No. 2 In this field questions arise which are certainly difficult; but as I listened last time to members of the group, I felt that the main difficulty perhaps lay in determining precisely what questions we are trying to answer. I have the conviction that if we could only say clearly what the questions are, the answers to them might not appear so elusive. So I have begun with a simple list of questions about discretion which in one form or another were, as it seemed to me, expressed by the group last time. I may indeed have omitted something and inserted something useless: if so, no doubt I shall be informed of this later.
Legal Theory

The Path Not Taken: H.L.A. Hart’s Harvard Essay on Discretion

Vol. 127 No. 2 It is an extraordinary privilege to be able to introduce a previously unpublished essay by H. L. A. Hart, one of the most distinguished figures in twentieth-century legal philosophy, alongside a fine commentary by Geoffrey Shaw, the scholar whose intellectual imagination and meticulous archival research has brought the essay to light. It is particularly apt that H. L. A. Hart’s essay should be published by this Review, appearing fifty-seven years after it was written in the early months of his visit to Harvard, thus joining a distinguished tradition of posthumously published scholarship of the 1950s, most notably Lon Fuller’s The Forms and Limits of Adjudication, and Henry Hart and Albert Sacks’s The Legal Process. Its publication is also timely, albeit long delayed, in that it comes hard on the heels of a period in which the intellectual history of legal thought has been the subject of wide interest and some very powerful scholarship.
Evidence

The Distortionary Effect of Evidence on Primary Behavior

Vol. 124 No. 2 In this Essay, we analyze how evidentiary concerns dominate actor’s behavior. Our findings offer an important refinement to the conventional wisdom in law and economics literature, which assumes that legal rules can always be fashioned to achieve socially optimal outcomes. We show that evidentiary motivations will often lead actors to engage in socially suboptimal behavior when doing so is likely to increase their chances of prevailing in court.
Legal Theory

Inducing Moral Deliberation: On the Occasional Virtues of Fog

Vol. 123 No. 5 Legal standards are often valued for their flexibility and their susceptibility to nuanced, context-sensitive interpretation. Legal rules are usually celebrated for their clarity and certainty. The received wisdom is that the merits of the one form represent the demerits of the other. Standards, for instance, facilitate contextual, individualized application of the law and allow for greater adaptation to changing circum¬stances and an unfolding evolution of legal understanding, but these virtues are thought to come, unfortunately, at the expense of notice and transparency.
Legal History

The Conservative Insurgency and Presidential Power: A Developmental Perspective on the Unitary Executive

Vol. 122 No. 8 This Essay traces successive elaborations through to the most recent construction of presidential power, the conservative insurgency’s “unitary executive.” Work on this construction began in the 1970s and 1980s during the transition from progressive to conservative dominance of the national agenda. A budding conservative legal movement took up the doctrinal challenge as an adjunct to the larger cause, and in the 1990s, it emerged with a fully elaborated constitutional theory. After 2001, aggressive, self-conscious advocacy of the unitary theory in the Administration of George W. Bush put a fine point on its practical implications. Much has been written about this theory in recent years, but virtually all of the commentary is by legal scholars seeking to adjudicate the constitutional merits of the case.
Election Law

Vote Fraud in the Eye of the Beholder: The Role of Public Opinion in the Challenge to Voter Identification Requirements

Vol. 121 No. 7 In the current debate over the constitutionality of voter identification laws, both the Supreme Court and defenders of such laws have justified them, in part, as counteracting a widespread fear of vote fraud that leads citizens to disengage from the democracy. Because actual evidence of voter impersonation fraud is rare and difficult to come by if fraud is successful, reliance on public opinion as to the prevalence of fraud threatens to allow courts to evade the difficult task of balancing the actual constitutional risks involved. In this Essay we employ a unique survey to evaluate the causes and effects of public opinion regarding vote fraud. We find that perceptions of fraud have no relationship to an individual’s likelihood of turning out to vote. We also find that voters who were subject to stricter identification requirements believe fraud is just as widespread as do voters subject to less restrictive identification requirements.