Judicial Doctrine as Risk Regulation

38 Pages Posted: 27 Feb 2014 Last revised: 9 Dec 2015

See all articles by Brannon P. Denning

Brannon P. Denning

Samford University - Cumberland School of Law

Michael B. Kent

Campbell University - Norman Adrian Wiggins School of Law

Date Written: February 25, 2014

Abstract

Much of the literature on risk regulation concerns “first-order” risks — e.g., those addressed by environmental law or workplace safety rules. But scholars recently have suggested that risk regulation can provide a helpful framework for thinking about “second-order,” or political, risks arising from allocations of power and institutional design. Although a few commentators have utilized this perspective to suggest connections between risk regulation and particular areas of constitutional law, in this essay, we take a broader view. Building on the existing literature, we argue that the selection of constitutional decision rules is a judicial effort to regulate the political risk that government officials will violate constitutional principles.

After making the case that judicial doctrinal formation is helpfully viewed as a species of political risk regulation, we discuss some implications of this risk regulation model and pose some questions for future research. We conclude that the risk regulation model reinforces the notion that the formation of doctrine is a temporally extended process, rather than a one-time event, and it provides a metric by which that doctrine can be evaluated. Additionally, the risk regulation model helps explain some of the more commonly critiqued features of constitutional law. Finally, the risk regulation model raises important questions that merit further investigation: (1) Should we trust judicial perceptions of and responses to political risk? (2) What influences risk assessment among judges, and are those influences (and resulting assessments) normatively defensible? (3) What connection, if any, exists between judicial risk assessment and the myriad doctrinal formulae employed by the Supreme Court?

Keywords: Supreme Court, judicial doctrine, risk regulation, decision rules, political risk

JEL Classification: K10, K19

Suggested Citation

Denning, Brannon P. and Kent, Michael B., Judicial Doctrine as Risk Regulation (February 25, 2014). Tennessee Law Review, Vol. 82, No. 2, 2015. Available at SSRN: https://ssrn.com/abstract=2401704 or http://dx.doi.org/10.2139/ssrn.2401704

Brannon P. Denning (Contact Author)

Samford University - Cumberland School of Law ( email )

800 Lakeshore Dr.
Birmingham, AL 35229
United States
205-726-2413 (Phone)
205-726-4060 (Fax)

Michael B. Kent

Campbell University - Norman Adrian Wiggins School of Law ( email )

225 Hillsborough Street
Suite 432
Raleigh, NC 27603
United States
(919) 865-4487 (Phone)

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