Showing papers by "Cass R. Sunstein published in 1988"
TL;DR: Sunstein this article argues that the basic republican commitments involve (1) deliberation in government; (2) political equality; (3) universality, or agreement as a regulative ideal; and (4) citizenship.
Abstract: In this Article, Professor Sunstein describes those aspects of republicanism that have the strongest claim to contemporary support, outlines the role of republican thought in the founding period, and explores some of the implications of republicanism for modern public law. Sunstein claims that the basic republican commitments involve (1) deliberation in government; (2) political equality; (3) universality, or agreement as a regulative ideal; and (4) citizenship. Professor Sunstein contends that all of these commitments played an important role during the founding period, generating a distinctive conception of governance. In his view, the common opposition between liberalism and republicanism is a false one; the founders were liberal republicans-a position that, Sunstein argues, is superior to its principal competitors. Sunstein claims that republican ideas suggest reformation of a number of current areas of modern public law, encompassing such contexts as statutory construction, campaign finance regulation, federalism, and discrimination. Professor Sunstein concludes with a discussion of recent proposals for group or proportional representation, arguing that such proposals can be supported by reference to the republican belief in deliberative democracy.
349 citations
01 Sep 1988
TL;DR: Among those involved in the events leading to the American Constitution, Thomas Jefferson was most concerned about the conflict between democracy and constitutionalism, and argued that periodic constitutional amendment was a necessary part of a well-functioning democracy as mentioned in this paper.
Abstract: Among those involved in the events leading to the American Constitution, Thomas Jefferson was most concerned about the conflict between democracy and constitutionalism. For Jefferson, periodic constitutional amendment was a necessary part of a well-functioning democracy. “Each generation is as independent of the one preceding, as that was of all which had gone before. It has then, like them, a right to choose for itself the form of government it believes most promotive of its own happiness … [T]he dead have no rights.” For James Madison, by contrast, constitutions must be insulated from the ordinary operation of politics. Jefferson's proposal, he wrote, would produce “the most violent struggles … between the parties interested in reviving, and those interested in reforming the antecedent state of property.” In Madison's view, a reduction of factional strife justified the insulation of constitutions from the ordinary functioning of politics. The debate between Jefferson and Madison has often been recapitulated in discussions of the relationship between constitutionalism and democracy. Constitutions operate as constraints on the governing ability of majorities; they are naturally taken as antidemocratic. But constitutional provisions serve many different functions. They may be liberal or illiberal; different constitutions, and different parts of the same constitution, protect different interests. We may distinguish, for example, between structural provisions and rights provisions. Structural provisions are usually intended to minimize the pathologies associated with one or another conception of democracy.
62 citations
TL;DR: Jaffe and Tushnet as discussed by the authors argued that the APA's injury-in-fact requirement should be replaced with a standing requirement for institutional litigants not having an injury in fact.
Abstract: ion of the dispute. For example, the dispute in Sierra Club v. Morton 70-the principal modem example of a case denying standing on injury-in-fact grounds-was hardly hypothetical or remote.7 1 Standing limitations are also said to be a way of ensuring sincere or effective advocacy.72 But institutional litigants not having injury in fact are particularly likely to be strong advocates. 7\" It is expensive to initiate a lawsuit, and those who do so without meeting the standing requirements are especially committed. 74 67. See L. Tribe, supra note 15, at 1571; Tushnet, The Sociology of Article III: A Response to Professor Brilmayer, 93 Harv. L. Rev. 1698 (1980). On the ahistorical character of the injury-in-fact test, see Berger, supra note 8, at 827; see also Jaffe, supra note 8, at 1035-37, 1047 (Anglo-American courts not restricted by requirement of Hohfeldian plaintiff, and courts should explicitly recognize this and the importance of individual conscience). 68. See infra notes 156-57, 176-81 and accompanying text (defending injury-infact limitation of APA); infra notes 205-32 and accompanying text (discussing possible article III limitations). 69. See, e.g., Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 471-76 (1982). 70. 405 U.S. 727 (1972). 71. See id. at 734 (alleged injury was adverse effect on national park of recreational development that would \"impair the enjoyment of the park for future generations\"). 72. See, e.g., Valley Forge, 454 U.S. at 472-73. 73. See Jaffe, supra note 8, at 1044; Meltzer, supra note 4, at 295-313. 74. The injury-in-fact requirement, however, might be justified as an interpretation of the APA that promotes autonomy and self-determination on the part of those directly affected. See infra note 157 and accompanying text. An additional justification for standing limitations is that they are an effective means of limiting the federal caseload. But unless there is an independent reason for the limitation in question, it is an entirely arbitrary way of accomplishing that goal; and in any case, there is little evidence that the elimination of standing requirements would materially affect the number of suits brought in federal court. Indeed, the available evidence suggests that broadened standing has produced very little in the way of increased lawsuits-perhaps an unsurprising result in light of the numerous costs, monetary and nonmonetary, of initiating litigation. See K. Davis, Administrative Law Treatise 222-27, 338 (1983); Fadil, Citizen Suits Against Polluters: Picking Up the Pace, 9 Harv. Envtl. L. Rev. 23, 29, 39 (1985); Meltzer, supra note 4, at 308-09. Standing limitations are also said to be a component of judicial restraint, or to serve the system of separation of powers. This claim raises more complex issues and is discussed infra notes 182-204 and accompanying text. 1448 [Vol. 88:1432 HeinOnline -88 Colum. L. Rev. 1448 1988 Notwithstanding these problems, the Data Processing approach appeared for a long time to generate a body of standing doctrine that had a large measure of coherence, at least under the APA.7 5 As the law developed, courts did not sharply distinguish between statutory beneficiaries and regulated class members, thus largely eliminating the asymmetry built into previous law.7 6 This development served to remove a skewed set of incentives for administrators who, under the previous regime, could be subject to a lawsuit in the event of overzealous enforcement action, but would be immunized from legal controls if they furnished insufficient protection. 77 There is powerful evidence that the recognition of standing for regulatory beneficiaries has been important in bringing about agency compliance with law. 78 At the same time, the doctrine has excluded merely ideological interests and the interest in law enforcement for its own sake. 79 A principal goal of the Data Processing approach was to achieve a large degree of clarity and predictability. And for a period, the injuryin-fact requirement seemed to operate in a reasonably straightforward fashion. It should be clear, however, that an assessment of whether the plaintiff has suffered injury in fact could not be the only question for purposes of standing. In an integrated economy, an enormously wide variety of people are affected by an agency's decision to act or not to 75. SeeJ. Vining, supra note 1, at 39-42. 76. Some asymmetry remains, however, since scarce prosecutorial resources provide a legitimate reason for agency inaction. The fact that agencies must allocate their limited resources to those problems that seem most pressing, however, has implications for reviewability rather than for standing. See Heckler v. Chaney, 470 U.S. 821, 831 (1985); Sunstein, Reviewing Agency Inaction After Heckler. v. Chaney, 52 U. Chi. L. Rev. 653, 683 (1985). 77. Congress has recognized this risk and expressly granted rights to beneficiaries in many statutes. See, e.g., Surface Mining Control and Reclamation Act of 1977, 30 U.S.C. § 1270 (1982); Energy Policy and Conservation Act, 42 U.S.C.A. § 6305 (West 1983 & Supp. 1988); Clean Air Act, 42 U.S.C. § 7604 (1982). 78. See, e.g., Exec. Office of the President, Office of Management and Budget, Regulatory Program of the U.S. Gov't 213-14, 432-34, 469 & 492 (Apr. 1, 1986-Mar. 31, 1987) (reflecting agency initiatives, resulting from judicially imposed deadlines in such areas as environmental and labor law); see also United Steelworkers of Am. v. Pendergrass, 819 F.2d 1263 (2d Cir. 1987) (requiring Secretary of Labor to publish standards for providing employees with information about hazardous chemicals, resulting in 29 C.F.R. §§ 1915.99, 1917.28, 1918.90 (1988)); Public Citizen Health Research Group v. Tyson, 796 F.2d 1479 (D.C. Cir. 1986) (finding that OSHA failed to set proper exposure limits for ethylene oxide, resulting in 29 C.F.R. § 1910.1047 (1987)); International Union, United Auto., Aerospace, & Agric. Implement Workers of Am. v. Donovan, 590 F. Supp. 747 (D.D.C. 1984) (requiring OSHA to reconsider decision not to issue temporary standards regarding workplace exposure to formaldehyde, resulting in 29 C.F.R. § 1910.47 (1987)). 79. The characterization of an interest as \"merely ideological\" or involving \"law enforcement for its own sake,\" must, however, be based on the relevant statutes; the characterization cannot be made in the abstract. By conferring a legal right, a statute might convert an ideological interest into a legal one. See infra notes 205-32 and accompanying text. 1988] STANDING 1449 HeinOnline -88 Colum. L. Rev. 1449 1988
27 citations
TL;DR: The case of Bowers v Hardwick as discussed by the authors showed that the due-process clause does not protect the right to engage in homosexual sodomy and, therefore, cannot be used to prevent government from imposing sanctions on the basis of sexual orientation.
Abstract: In Bowers v Hardwick,1 the Supreme Court held that the due process clause does not protect the right to engage in homosexual sodomy. The Court said that heightened judicial protection under that clause was reserved to rights "implicit in the concept of ordered liberty" or "deeply rooted in this Nation's history and tradition."2 According to the Court, homosexual sodomy could not qualify for special protection under either test.3 In some circles, Hardwick was thought to spell the end, at least for the immediate future, to efforts to use constitutional litigation to prevent government from imposing sanctions on the basis of sexual orientation. In Padula v Webster,4 for example, the United States Court of Appeals for the District of Columbia Circuit upheld the FBI's policy of considering homosexual conduct a "significant" and often dispositive factor in employment decisions. The court said that the issue was controlled by Hardwick:
23 citations