Posted by Orin Kerr:
Libertarian Panics:
Lawprof Adrian Vermuele has a very interesting 13-page symposium essay
up on SSRN entitled "Libertarian Panics." You can download it [1]here.
From the abstract:
In a standard analysis, the history of civil liberties is
characterized by a series of security panics. A range of mechanisms
- cognitive heuristics and biases, various forms of cascading and
herding, conformity and preference falsification, and so on - cause
periodic panics in which aroused publics demand repressive measures
to curtail the civil liberties of perceived enemies of the nation,
particularly noncitizens or other outsiders. Government officials
may themselves panic, or will at least supply the panicky measures
that constituents demand. The standard remedy is to urge changes to
legal doctrine or institutions, in order to curtail government's
power to repress civil liberties in response to security panics.
. . . Even if that model is right as far as it goes, it is fatally
incomplete. My central claim is that the mechanisms underlying
security panics have no necessary or inherent pro-security valence.
The very same mechanisms are equally capable of producing
libertarian panics: episodes in which aroused publics become
irrationally convinced that justified security measures represent
unjustified attempts to curtail civil liberties. I will suggest
that libertarian panics have been a regular occurrence in American
history, and that we may be living through one now, in the form of
a widespread and thoroughly irrational, even hysterical, reaction
to small legal changes adopted after 9/11. Indeed, the tendency to
diagnose the existence of a security panic can itself be
symptomatic of a libertarian panic.
Thanks to [2]Larry Solum for the link.
References
1. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=671942
2.
http://lsolum.blogspot.com/archives/2005_03_01_lsolum_archive.html#110996268635437013
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