Many millions of people hold conspiracy theories; they believe that powerful people have worked together in order to withhold the truth about some important practice or some terrible event. A recent example is the belief, widespread in some parts of the world, that the attacks of 9/11 were carried out not by Al Qaeda, but by Israel or the United States. Those who subscribe to conspiracy theories may create serious risks, including risks of violence, and the existence of such theories (...) raises significant challenges for policy and law. The first challenge is to understand the mechanisms by which conspiracy theories prosper; the second challenge is to understand how such theories might be undermined. Such theories typically spread as a result of identifiable cognitive blunders, operating in conjunction with informational and reputational influences. A distinctive feature of conspiracy theories is their self-sealing quality. Conspiracy theorists are not likely to be persuaded by an attempt to dispel their theories; they may even characterize that very attempt as further proof of the conspiracy. Because those who hold conspiracy theories typically suffer from a crippled epistemology, in accordance with which it is rational to hold such theories, the best response consists in cognitive infiltration of extremist groups. Various policy dilemmas, such as the question whether it is better for government to rebut conspiracy theories or to ignore them, are explored in this light. (shrink)

Many-minds arguments are flooding into legal theory. Such arguments claim that in some way or another, many heads are better than one; the genus includes many species, such as arguments about how legal and political institutions aggregate information, evolutionary analyses of those institutions, claims about the benefits of tradition as a source of law, and analyses of the virtues and vices of deliberation. This essay offers grounds for skepticism about many-minds arguments. I provide an intellectual zoology of such arguments and (...) suggest that they are of low utility for legal theory. Four general and recurring problems with many-minds arguments are as follows: (1) Whose minds?: The group or population whose minds are at issue is often equivocal or ill-defined. (2) Many minds, worse minds: The quality of minds is not independent of their number; rather, number endogenously influences quality, often for the worse. More minds can be systematically worse than fewer because of selection effects, incentives for epistemic free-riding, and emotional and social influences. (3) Epistemic bottlenecks: In the legal system, the epistemic benefits of many minds are often diluted or eliminated because the structure of institutions funnels decisions through an individual decisionmaker, or a small group of decisionmakers, who occupy a kind of epistemic bottleneck or chokepoint. (4) Many minds vs. many minds: The insight that many heads can be better than one gets little purchase on the institutional comparisons that pervade legal theory, which are typically many-to-many comparisons rather than one-to-many. (shrink)

There is a substantial class of collective decision problems whose successful solution requires interdependence among decision makers at the agenda-setting stage and independence at the stage of choice. We define this class of problems and describe and apply a search-and-decision mechanism theoretically modeled in the context of honeybees and identified in earlier empirical work in biology. The honeybees’ mechanism has useful implications for mechanism design in human institutions, including courts, legislatures, executive appointments, research and development in firms, and basic research (...) in the sciences. Our paper offers a fresh perspective on the idea of “biomimicry” in institutional design and raises the possibility of comparative institutional analysis across species. (shrink)

Standing institutions have a continuous existence: examples include the United Nations, the British Parliament, the US presidency, the standing committees of the US Congress, and the Environmental Protection Agency. Intermittent institutions have a discontinuous existence: examples include the Roman dictatorship, the Estates-General of France, constitutional conventions, citizens' assemblies, the Electoral College, grand and petit juries, special prosecutors, various types of temporary courts and military tribunals, ad hoc congressional committees, and ad hoc panels such as the 9/11 Commission and base-closing commissions. (...) Within the class of intermittent institutions, one may distinguish periodic from episodic institutions. The former come into being on a schedule set down in advance, while the latter come into being at unpredictable intervals. The Electoral College is a periodic institution, while the Roman dictatorship is an episodic one. This article attempts to identify the benefits and costs of intermittent institutions, both as a class and in their periodic and episodic varieties. The largest goals are to state some general conditions under which intermittent institutions prove superior or inferior to standing institutions, and to illuminate the temporal dimension of institutional design. (shrink)

A system effect arises when the properties of an aggregate differ from the properties of its members, taken one by one. The failure to recognize system effects leads to fallacies of division and composition, in which the analyst mistakenly assumes that what is true of the aggregate must also be true of the members, or that what is true of the members must also be true of the aggregate. Examples are (1) the fallacious assumption that if the overall constitutional order (...) is to be democratic, each of its component institutions must be democratic, taken one by one; (2) the fallacious assumption that if judges are politically biased, courts will issue politically biased rulings. In these cases and many others I will discuss, system effects are an indispensable analytic tool for legal theory. A systemic approach implies that the choices of legal actors are strategically interdependent: the best course of action for any given actor will depend upon what other actors do. Judges deciding how to interpret statutes and the constitution, for example, cannot simply assume, idealistically, that it would be best for them to adopt the approach that would be best for all if adopted by all. If others do not adopt that approach, then the nature of the best approach for the given judge may itself change, taking others' actions as nonideal constraints. The implication is a second-best approach to constitutionalism and legal interpretation.The judge who takes system effects into account may change her approach in light of the behavior of her colleagues and the behavior of other institutions. Although such a judge is strategic, it does not follow that she is unprincipled. Rather, under identifiable conditions, the systemically-minded judge will be a strategic legalist who attempts to act, within the constraints that arise from others' behavior, so as to nudge the legal system toward the best possible state, according to her view of the law. Indeed, the systemically-minded judge may even be a legal chameleon who changes her approach as the legal environment, including the behavior of other judges, changes around her, until the court as a whole reaches an equilibrium of optimal diversity. Although such a course of action is psychologically demanding, the systemic benefits that the legal chameleon creates can be attained at the systemic level instead. Wise appointments by Presidents and Senators aiming to diversify the judiciary would mimic, in a second-best way, the diversity that a bench of legal chameleons would produce"--John M. Olin Center for Law, Economics, and Business web site. (shrink)