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In his observations about IRBs, Professor Richard Epstein makes persuasive arguments about the dangerous reach of the IRB laws, but he prefaces this policy analysis with a brief excursus into constitutional law that requires some comment. His view is that the constitutional debate over IRBs arises not so much from a substantial constitutional problem as from “ingenious arguments.” Yet this conclusion rests on mistaken assumptions – both about the IRB laws and about the constitutional objections – and because so much is at stake in the constitutional question, it is necessary to point out the inaccuracies.

The first set of mistaken assumptions relates to the IRB laws. Professor Epstein doubts there is any serious constitutional problem with the IRB laws, and certainly if they are understood in accord with popular assumptions about them, the constitutional issues are not as sharp as some of us have suggested. The laws, however, repay careful study.


Constitutional Law | Law