The preference of behavioral law and economics (BLE) for regulatory approaches that preserve “freedom of choice” has led to incomplete policy analysis and inefficient policies. BLE has been broadly regarded as among the most promising new developments in public policymaking theory and...

This essay asserts that the strongest legal arguments for justifying regulations of election financing, such as electioneering paid for out of a corporation’s or union’s general treasury funds, ultimately rest on the view that elections should be considered a distinct sphere of political...

The Supreme Court will hear in December one of the most important separation-of-powers case in many years involving the structure of administrative agencies. The case, Free Enterprise Fund v. The Public Company Accounting Oversight Board, and this article, addresses virtually every major...

In both constitutional law and public policy, Cass Sunstein's work has entailed a search for the largest common denominator that justifies government action. In constitutional theory, Sunstein developed the concept of "incompletely theorized agreements" as a model for how judges ought to decide...

Among the most significant, but least appreciated, developments in Supreme Court decisionmaking over the last generation has been what this Article calls "the constitutionalization of democracy." In recent years, powerful litigants - the major political parties, incumbent officeholders,...