Showing papers by "Cass R. Sunstein published in 1990"

After the Rights Revolution: Reconceiving the Regulatory State

Abstract: In the twentieth century, American society has experienced a "rights revolution": a commitment by the national government to promote a healthful environment, safe products, freedom from discrimination, and other rights unknown to the founding generation. This development has profoundly affected constitutional democracy by skewing the original understanding of checks and balances, federalism, and individual rights. Cass Sunstein tells us how it is possible to interpret and reform this regulatory state regime in a way that will enhance freedom and welfare while remaining faithful to constitutional commitments. Sunstein vigorously defends government regulation against Reaganite/Thatcherite attacks based on free-market economics and pre-New Deal principles of private right. Focusing on the important interests in clean air and water, a safe workplace, access to the air waves, and protection against discrimination, he shows that regulatory initiatives have proved far superior to an approach that relies solely on private enterprise. Sunstein grants that some regulatory regimes have failed and calls for reforms that would amount to an American perestroika: a restructuring that embraces the use of government to further democratic goals but that insists on the decentralization and productive potential of private markets. Sunstein also proposes a theory of interpretation that courts and administrative agencies could use to secure constitutional goals and to improve the operation of regulatory programs. From this theory he seeks to develop a set of principles that would synthesize the modern regulatory state with the basic premises of the American constitutional system. Teachers of law, policymakers and political scientists, economists and historians, and a general audience interested in rights, regulation, and government will find this book an essential addition to their libraries.

Paradoxes of the Regulatory State

Abstract: By "paradoxes of the regulatory state," I mean self-defeating regulatory strategies-strategies that achieve an end precisely opposite to the one intended, or to the only public-regarding justification that can be brought forward in their support.' This definition excludes, and I will not discuss, a number of pathologies of the regulatory state that are clearly related to the phenomenon of regulatory paradoxes, such as strategies whose costs exceed their benefits, or that have unintended adverse consequences. An example of a regulatory paradox would be a Clean Air Act that actually made the air dirtier,2 or a civil rights law that increased the incidence of racial discrimination.3 A large literature, inspired by public choice theory and welfare economics, has grown up around the theory that purportedly public-interested regulation is almost always an effort to create a cartel or to serve some private interest at the public expense.4 Although I shall be drawing on much of that literature here, I do not conclude,

Norms in Surprising Places: The Case of Statutory Interpretation

Abstract: Philosophers, political scientists, and lawyers have devoted considerable attention to the role of norms in the two areas for which Anglo-American legal systems are most frequently celebrated: the common law and constitutional law. Thus, for example, judicial elaboration of common law principles of contract, tort, and property has been described (alternately) as an effort to promote economic efficiency or to protect private autonomy; and background norms of various sorts have been developed from these premises. So too, the role of norms in the choice among different strategies for interpreting the open-ended phrases of the Constitution is reasonably well understood. There is a conspicuous gap, however, in the treatment of statutory interpretation. The gap is striking in light of the fact that the interpretation of statutes has become by far the most frequent and important task for judges (and administrators) in industrialized democracies. Although interpretation of regulatory statutes frequently determines the content and scope of programs affecting (for example) pollution, energy, nuclear power, endangered species, workers, and victims of discrimination, it is in this setting that courts are said to have little or no room to move. On the usual view, their role is to act as agents of the legislature, implementing its commands. Indeed, it is here that courts are said to act, at least most of the time, without "interpretation" or "norms" at all. In these circumstances, the notion that norms play a major role in statutory construction might seem iconoclastic or even bizarre. In this essay, I want to argue that extratextual norms-understood as principles about constitutional government, institutional arrangements, basic fairness, and regulatory failure-do in fact play a crucial role in the interpretation of statutes. Indeed, descriptive and prescriptive work on this topic is impossible without an understanding of the role of norms. My argument comes in two basic parts. In the first part, I reject the view

Paradoxes of the Regulatory State

Abstract: The regulatory state faces a set of paradoxes, in the form of strategies that achieve an end precisely opposite to the one intended. These include: (2) overregulation can produce underregulation; (2) stringent regulation of new risks can increase aggregate risk levels; (3) requiring the best available technology can retard technological development; (4) redistributive regulation can harm those at the bottom of the economic ladder; (5) disclosure requirements can make people less informed; and (6) independent agencies are not independent.

Routine and Revolution

Abstract: The most prominent theories of public life in American law tend to be rooted in conceptions of virtue, welfare, or autonomy. For example, modern interest-group pluralism is defended on the ground that it re­ spects private preferences, thus enhancing autonomy, and accurately ag­ gregates private interests, thus promoting welfare. 1 The principal competitors to pluralism stem from republican theories of politics, which are designed to profit from and to cultivate virtue in political actors, whether citizens or representatives. Republican theories also draw on a conception of politics that sees freedom in the selection rather than the implementation of ends. The dispute between pluralist and republican theories turns out to be a disagreement about the meaning and place of freedom, welfare, and virtue in public life. Roberto Unger's Politics rejects these positions and places in their stead a distinctive theory of human nature and a distinctive approach to politics. 3 The institutional proposals in Politics-embodying what Unger calls "empowered democracy" -are designed to break down the distinc­ tions between routine and revolution and to facilitate individual and col­ lective self-transformation. It should not be hard to see that this system departs dramatically from those based on the conceptions of virtue, au­ tonomy, and welfare that have influenced modern democratic theory. This Essay is organized in three parts. The first explores the rela­ tionship between Unger's approach and eighteenth-century constitution­ alism, the principal target of Unger's institutional proposals. The second compares Unger's system of "empowered democracy" with the various understandings of public life that have dominated American constitu­ tional theory since its inception. I explore the relationships among Un­ ger's approach and the more conventional alternatives. The final part of the Essay examines Unger's conception of the relationship between de­ mocracy and constitutionalism. The task for the future, I suggest, is to minimize the pathologies of traditional constitutionalism in systems that

Unity and Plurality: The Case of Compulsory Oaths

Abstract: One of the characteristic functions of modern government is to administer declarations of attachment. Many of these declarations are compulsory, and they span a wide range. In order to receive some social benefit-a license, citizenship, education, employment, a right to cohabit-one must declare one's allegiance to a person or entity. Declarations of attachment are often backed by the force of law. Membership in private organizations, including fraternities, religious groups, and clubs, may also be conditioned on compliance with requirements of this sort. Compulsory oaths have been a prominent source of controversy in the latter half of the twentieth century. Consider, for example, recent debates over the pledge of allegiance, loyalty oaths, the marriage vow, and oaths of citizenship for new Americans. Civil libertarians have criticized compulsory declarations in some or all of these settings on the ground that they impose requirements of uniformity and obedience that are inconsistent with important principles of pluralism and individual freedom. Defenders of compulsory declarations respond that oaths serve important unifying, educative, and even celebratory functions, inculcating in participants a sense of the solemnity and importance of such central institutions as citizenship and marriage. In this view, otherwise plausible principles of freedom and pluralism should not be permitted to override the legitimate functions performed by compulsory oaths. Indeed, freedom and pluralism may ultimately depend on the social cohesion brought about by institutions that perform precisely those functions. My goal in this essay is to explore the diverse social functions of compulsory declarations of attachment. The treatment will be tentative and speculative; it will also be largely descriptive rather than normative. I want to provide some preliminary answers to the following questions: What social tasks do compulsory declarations carry out? To what problems and needs, and to whose problems and needs, are they an attempted response?