D. How Sunstein 's View

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D. How Sunstein’s view relates to Posner • Sunstein 's view, in regards to Posner, would be in a general disagreement to the use of wealth maximization to cover all law, to the extent that not using the theory would go against what courts promote. To Posner, judges, in their application of rules and procedures to particular cases, ought to promote wealth maximization. The promotion of wealth maximization requires an ought. This means that to pursue wealth maximization is something that should be done and if not done it would be wrong. • However, to Sunstein, this view is exactly what he is argues against; wherein a high-level theory, a general theory of all law, has a domain over a large portion of law. So large, in fact, that the high-level theory is where all principles and outcomes should come from as absolutes. However, Posner must allow indeterminacy in particular cases; an ambiguity that is filled with low-level principles, that do not directly derive from the theory of wealth maximization. If this can be true, for particular cases, then it can be incompletely theorized and acceptable to Sunstein. But Posner, would hold that his economic approach, that uses wealth maximization, is necessary. An example of the contrary is in the Reference re Secession case where the basis of the reasoning were low-level principles that depended on the Canadian legal doctrine. E. Reference re Secession: conclusion and one point of the reasoning • In the Reference re Secession of Quebec case the courts were asked to give a decision as to whether or not unilateral secession of Quebec as its own nation was legal under the Constitution of Canada. The justices concluded that Quebec cannot unilaterally secede from C... ... middle of paper ... ...se this large scale theory is the main focus of what he argues against. Sunstein states that high-level theories should be incompletely theorized so that there can be ambiguity in particular cases. The ambiguity can be filled in with low-level principles that do not belong to a single theory but can be members of many other high-level theories. This was illustrated with the Reference re Secession of Quebec case, by focusing on the reasoning of the protection of minority rights. The case was decided so that it was deemed illegal for unilateral succession. Both Sunstein 's and Posner 's responses to this case both agree on the decision of the courts being the right course of action. But, Sunstein had the better argument because the aspects of low-level theories that exist within our legal doctrine cannot be explained by Posner 's wealth maximization on certain cases.
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