Document Type


Publication Date

Fall 2004


The articles and essays included or referenced in this volume discuss both the factors that affect decision making in times of crisis and their implications for law and democratic theory. Professor Cass Sunstein's keynote address, Fear and Liberty, noted that psychological biases such as the availability heuristic and probability neglect can skew risk perception, leading to excessive public fear of national security risks and unreasonable curtailment of civil liberties. According to Sunstein, courts, which are typically responsible for protecting civil liberties, often lack sufficient information to assess whether national security concerns justify incursions on civil liberties. Nevertheless, he concluded that courts can still provide an essential safeguard against unreasonable infringements (1) by requiring that executive actions infringing civil liberties be clearly authorized by legislative enactments, (2) by carefully scrutinizing selective burdens on the civil liberties of identifiable minorities, and (3) by using strong presumptions rather than case-by-case balancing in constitutional adjudication.



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