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http://ssrn.com/abstract=918293
 
 

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Probability Thresholds


Jonathan S. Masur


University of Chicago - Law School

April 4, 2006

Iowa Law Review, Vol. 92, May 2007

Abstract:     
Scholars and lower courts have traditionally operated under the belief that cases involving direct tradeoffs between free speech and national security call for the application of straightforward cost-benefit analysis. But the Supreme Court has refused to adhere to this approach, instead deciding difficult liberty-versus-security questions with reference to a “probability threshold” - a doctrinal floor defining how likely a potential threat must be in order to register in the constitutional calculus. This doctrinal innovation has served as a necessary corrective to what would otherwise be the systematic overestimation of speech-based threats driven by the interaction of two factors. First, distinct informational asymmetries favor the government, the putative censor. Second, courts and other lay risk analysts - through the exercise of bounded rationality - tend to overstate very low-probability, highly emotionally salient dangers.

Number of Pages in PDF File: 65

Keywords: first amendment, probability, clear and present, behavioral law and economics, availability heuristic, cost-benefit, balancing, cognitive

JEL Classification: K39

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Date posted: July 24, 2006 ; Last revised: February 24, 2011

Suggested Citation

Masur, Jonathan S., Probability Thresholds (April 4, 2006). Iowa Law Review, Vol. 92, May 2007. Available at SSRN: http://ssrn.com/abstract=918293

Contact Information

Jonathan S. Masur (Contact Author)
University of Chicago - Law School ( email )
1111 E. 60th St.
Chicago, IL 60637
United States
773.702.5188 (Phone)
HOME PAGE: http://www.law.uchicago.edu/faculty/masur/
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