Showing papers by "Cass R. Sunstein published in 1991"

Constitutionalism and Secession

Abstract: The Soviet Constitution guarantees a right to secede.' The American Constitution does not. Although some secessionists in the American South, invoking state sovereignty, claimed to find an implicit right to secede in the founding document, it was more common to invoke an extratextual and nonjusticiable "right to secede" said to be enshrined in the Declaration of Independence.2 In any case, no serious scholar or politician now argues that a right to secede exists under American constitutional law.3 It is generally agreed that such a right would undermine the Madisonian spirit of the original document, one that encourages the development of constitutional provisions that prevent the defeat of the basic enterprise.4 Eastern European countries are now deciding about the contents of proposed constitutions. They are often doing so in the context of profound cultural and ethnic divisions, both often defined at least roughly in territorial terms. These divisions have propelled

Why Markets Don't Stop Discrimination

Abstract: Markets, it is sometimes said, are hard on discrimination. An employer who finds himself refusing to hire qualified blacks and women will, in the long run, lose out to those who are willing to draw from a broader labor pool. Employer discrimination amounts to a self-destructive “taste” – self-destructive because employers who indulge that taste add to the costs of doing business. Added costs can only hurt. To put it simply, bigots are weak competitors. The market will drive them out.On this account, the persistence of employment discrimination on the basis of race and sex presents something of a puzzle. And if markets are an ally of equality and a foe of employment discrimination, perhaps discrimination persists because of something other than markets. Perhaps labor unions are to blame; perhaps the real culprit is the extensive federal regulation of the employment market, including minimum-wage and maximum-hour laws and unemployment compensation. If competitive markets drive out discrimination, the problem for current federal policy lies not in the absence of aggressive anti-discrimination law, but instead in the absence of truly competitive markets.If this account is correct, the prescription for the future of anti-discrimination law is to seek ways to free up employers from the wide range of governmental disabilities – including, in fact, anti-discrimination law itself. The argument seems to be bolstered by the fact that some groups subject to past and present prejudice – most notably, Jews and Asian-Americans – have made substantial progress in employment at least in part because of the operation of competitive markets.

Constitutionalism, prosperity, democracy: Transition in Eastern Europe

Abstract: Eastern Europe is now undergoing three distinct transitions: to markets, to democracy, and to constitutionalism. Under current conditions, the transition to constitutionalism is a logical precondition for the transitions to markets and democracy. To protect both of these, it is especially necessary to develop an “economic bill of rights” for inclusion in the new constitutions. This bill of rights should include the rule of law, protection of private property, freedom of contract, occupational liberty, the right to travel within and without the nation, and a prohibition on government monopolies; other similar provisions should be considered as well. The new constitutions should not include general aspirations, duties, or positive rights. The eventual development of an economic bill of rights—a precommitment strategy designed to promote prosperity and democracy—could constitute a new and important contribution to the theory and practice of constitutionalism.

Three Civil Rights Fallacies

Abstract: From the early 1950s until the present day, three propositions have permeated the arguments of lawyers and others interested in advancing the cause of civil rights. The first proposition is that the target of the civil rights movement is discrimination, which is always or usually a product of irrational hatred, fear, or prejudice. In this view, the purpose of civil rights law is to eliminate these forms of irrationality from the public and private realms. The second proposition is that the principal function of civil rights law is compensatory. Just as an injured person in a tort action has a right to be made whole, so victims of a history of discrimination (including slavery) are entitled to be put into the place they would have occupied if discrimination had never occurred. Restoration of the status quo ante is a substantial part of the reasoning and rhetoric of civil rights law. The third proposition is that the judiciary is the appropriate institution for the making and enforcement of civil rights law. Reliance on the courts, principally through interpretation of the Constitution, has been a distinctive feature of the civil rights movement since the middle of this century. In this essay, I argue that these three propositions, which are mutually reinforcing, are fallacies. They misconceive the nature of discrimination and offer prescriptions that are ill-adapted to its elimination. This was so even in the period in which they arose and helped to accomplish considerable good. But their fallacious character will be especially conspicuous in the last decade of the twentieth and the early decades of the twenty-first century. In this period, the consequences of the fallacies will probably be pernicious. I do not mean at all to deny that prejudice still plays a major role in many realms of social and economic life, that the history of discrimina-

Background Norms in the Regulatory State

Abstract: Anyone familiar with the work of Cass Sunstein will expect his book to exhibit wide background learning, sharp analysis, and elegant writing. In these respects, the reader of After the Rights Revolution1 will not be disappointed. And a reader of any persuasion will get a bracing intellectual workout. But many will come away unconvinced by the special blend that Sunstein has brewed up: a pragmatic and overwhelmingly negative assessment of large chunks of the modern regulatory state, combined with a dewy-eyed enthusiasm for others, which he declines to examine in any great detail. The first two chapters set out to perform two functions. The first is a general demolition, largely based on history, of any presumption in favor of \"private ordering\"-the principle that most economic and social relations should be defined by citizens' dealings with each other, within a framework of basic entitlements defined and enforced by the state. The second is a natural follow-up: articulation of a list of grounds on which the state may properly and sensibly interfere with private ordering. Sunstein's list appears to include everything under the sun; even the greatest enthusiasts of statism may gag.