Harvard Law School
July 21, 2010
Harvard Public Law Working Paper No. 10-38
Harvard Law and Economics Discussion Paper No. 673
There is a burgeoning literature on second opinions in professional contexts, as when patients or clients seek advice from a second doctor or lawyer. My aim, by contrast, is to analyze second opinions as a central feature of public law. I will try to show that many institutional structures, rules and practices have been justified as mechanisms for requiring or permitting decisionmakers to obtain second opinions; examples include judicial review of statutes or of agency action, bicameralism, the separation of powers, and the law of legislative procedure. I attempt to identify the main costs and benefits of second opinions, to identify conditions under which second-opinion arguments prove more or less successful, and to consider how the lawmaking system might employ second-opinion mechanisms to greater effect. I claim, among other things, that the Supreme Court should adopt a norm that two successive decisions, not merely one, are necessary to create binding law.
Number of Pages in PDF File: 34
Date posted: July 21, 2010 ; Last revised: August 17, 2010