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4 J. Legal Analysis 1 (2012)

handle is hein.journals/jlegan4 and id is 1 raw text is: 


Adrian Vermeule'

On December 15-16, 2011, Harvard Law School convened a conference on
Political Risk and Public Law. This special issue of the Journal of Legal
Analysis is devoted to publishing papers on this topic by Jon Elster, Edward
Glaeser, Eric Posner, Fred Schauer, Mark Tushnet, and myself. The overall aim
is to introduce a new set of questions about public law and a new analytical
framework for thinking about those questions.
   The premise of the enterprise is that constitutions and other instruments of
public law may fruitfully be viewed as devices for regulating political risks. Large
literatures in law, economics, political science, and policy studies examine
first-order risks that arise from technology, the market, or nature. Product
safety laws, workplace safety laws, health and medical regulation, environmen-
tal regulation, emergency management, and other categories of regulatory and
administrative policy-making attempt to manage such risks so as to promote
overall welfare, fair distribution of risk, and other goals. By contrast, it may be
fruitful to understand constitutions and foundational statutes, such as the
Administrative Procedure Act, as devices for regulating second-order risks.
These are risks that arise from the design of institutions, the allocation of
legal and political power among given institutions, and the selection of officials
to staff those institutions. Whereas ordinary risk regulation asks how first-order
risks should be managed, political risk regulation asks how institutions should
be designed, how competences should be allocated, and how officials should be
selected to produce the best attainable constitutional system.
   The difference between the political risk perspective on public law, on the one
hand, and the familiar legal-process analysis of comparative institutional com-
petence, on the other, is that the former employs the framework of risk analysis
elaborated by many disciplines across the social and policy sciences. That
framework promises new insights for public law. Constitutional actors have

1   Harvard Law School, John H. Watson Professor of Law, Harvard Law School. E mail: avermeule@
    law.harvard.edu. Thanks to the editors of the Journal of Legal Analysis, Mark Ramseyer and Steve
    Shavell, for arranging this special issue, and to Jacob Gersen for comments. Parts of the foregoing are
    adapted from, and treated more extensively in, Adrian Vermeule, Precautionary Principles in
    Constitutional Law, in this issue.
© The Author 2012. Published by Oxford University Press on behalf of The John M. Olin Center for Law, Economics and Business
at Harvard Law School.
This is an Open Access article distributed under the terms of the Creative Commons Attribution Non-Commercial License
(http://creativecommons.org/licenses/by-nc/3.0), which permits unrestricted non-commercial use, distribution, and
reproduction in any medium, provided the original work is properly cited.
doi:10.1093/jla/las007                               Advance Access published on June 20, 2012

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