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Prelude to Next Week’s Oral Argument: Henry and Stearns on Commerce Games and the Individual Mandate

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2 Responses

  1. Amanda Pustilnik says:

    I valued – and highly recommend – this article for a few reasons. The first is the timely subject matter on ACA, of course. But the game theoretical analysis made me conceive of Commerce Clause jurisprudence in an entirely new way. The game theory piece is accessible and quite compelling. Thanks for posting, Danielle!

  2. A.J. Sutter says:

    Conclusions based on game theory don’t suddenly become more reliable just because they’re conclusions with which one might agree. See, e.g., the diverse criticisms of game theory in the economics literature, such as by Kreps (1990), Mirowski (2002), and Kirman (2010). The game theory in the paper is also rather simplistic, since the examples used all rely on binary choices, when far more nuanced options are available to policy. But the authors deserve credit for employing a clever rhetorical strategy to support their favored arguments, since many readers will find game theory persuasive (though if these readers don’t include Supreme Court Justices, the effort might turn out to be fruitless). As the authors put it @ 1122,

    Our approach accomplishes three simultaneous goals. First, it reconciles the historical expansion of congressional post-New Deal Commerce Clause powers with the Rehnquist Court’s retrenchments on those powers. [Footnote omitted] Second, it shows why recent doctrinal limits do not mandate striking down the individual man- date. And third, it demonstrates doctrinal coherence, not merely doctrinal convenience or creativity. [Emphasis added]

    At least they’re up-front about these being their a priori goals, instead of conclusions that fall out of some pseudo-objective analysis.

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