The Lure of Large Numbers
In this book review, Professor Ferejohn notes that recent works by Adrian Vermeule and Cass Sunstein both generally agree that judges do in practice frequently defer to “many minds” — to congressional majorities past or present, to executive branch policies, to judicial precedents, or to the public opinion — on important constitutional issues. Further, both works give reasons to believe that, in some circumstances, such deference is justified partly because the other branches are likely to make better-informed decisions than one or a few sitting judges could; however, the works’ authors differ greatly on how and when deference is owed to other branches or to the people. Professor Ferejohn’s concern is that both authors, to varying extents, focus too much on one kind of informational problem (aggregation) and too little on others (such as incentives to generate and transmit information).
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