Showing papers by "Cass R. Sunstein published in 1993"

Democracy and the Problem of Free Speech

Abstract: Should state or federal governmental units regulate pornography? Are existing constitutional standards clear enough to create and enforce restrictions on printed materials? In this article the author posits that the federal government should not attempt to curb offensive sexually explicit speech or printed works. However, he argues that the government has the authority to craft regulations addressing narrow issues related to materials combining sex with violence or coercion.

The Partial Constitution

Abstract: American constitutional law is at a crossroads As it is currently interpreted, the Constitution is partial, Sunstein asserts It is, first of all, biased Contemporary constitutional law treats the status quo as neutral and just, and any departure as necessarily partisan But when the status quo is neither neutral nor just, Sunstein argues, reasoning of this sort produces injustice The Constitution is partial in another sense: its meaning has come to be identified solely with the decisions of the Supreme Court This was not always the case, as Sunstein demonstrates; nor was it the intention of the country's founders Instead, the Constitution often served as a catalyst for public deliberation about its general terms and aspirations - and Sunstein makes a strong case for reviving this broader understanding of the Constitution's role In light of this analysis, Sunstein proposes solutions to some of the most hotly disputed issues of our time, including affirmative action, sex discrimination, pornography, "hate speech", and government funding of religious schools and the arts In an especially striking argument, he claims that the equal protection clause of the 14th Amendment - not the right to privacy - protects a woman's right to choose abortion Sunstein connects these and other debates to the Constitution's historic commitment to public deliberation among political equals - and in doing so, he reconceives many of our most basic constitutional rights, such as free speech and equality under law He urges that public deliberation about the meaning of the Constitution in turn be freed from a principle of neutrality based on the status quo His work points to a historically sound but fundamentally new understanding of the American constitutional process as an exercise in deliberative democracy

Endogenous Preferences, Environmental Law

Abstract: The rise of behavioral economics has important implications for the study of government regulation. Above all, the endogeneity of preferences offers a large area for positive work. Some environmental outcomes can be explained by status quo bias and the endowment effect. These phenomena help account for the asymmetry between old and new risks and the public antipathy toward strategies that create incentives to decrease use of automobiles. Both private and public behavior in the environmental context are an outgrowth of the fact that environmental preferences are endogenous to available opportunities, to shifting social norms, and to past acts of consumption.

Words, Conduct, Caste

Abstract: How do we know what counts as speech and what counts as conduct? When is government disabled from regulating conduct that is intended to express ideas? What is the relationship between constitutional principles of equality and constitutional principles of free expression? And how do these questions bear on current controversies over pornography and hate speech? In this Essay, I propose some answers to these questions. I offer these general propositions: 1. As a matter of history and principle, the constitutional commitment to equality should be understood as a prohibition against systems with caste-like features. Courts should play a cautious role

Endogenous Preferences, Environmental Law

Abstract: The rise of behavioral economics has important implications for the study of government regulation. Above all, the endogeneity of preferences offers a large area for positive work. Some environmental outcomes can be explained by status quo bias and the endowment effect. These phenomena help account for the asymmetry between old and new risks and the public antipathy toward strategies that create incentives to decrease use of automobiles. Both private and public behavior in the environmental context are an outgrowth of the fact that environmental preferences are endogenous to available opportunities, to shifting social norms, and to past acts of consumption.

Half-Truths of the First Amendment

Abstract: It is a deduction from the basic American agreement that public issues shall be decided by universal suffrage."). See also Robert H. Bork, Neutral Principles and Some First Amendment Problems, 47 Ind L J 1 (1971); Owen M. Fiss, Free Speech and Social Structure, 71 Iowa L Rev .1405, 1409-10 (1986). 11 See, for example, Martin H. Redish, The Value of Free Speech, 130 U Pa L Rev 591

Against Interest-Group Theory: A Comment on Peltzman, "The Political Economy of the Decline of American Public Education"

Abstract: M ANY people think that political outcomes can be \"explained\" as products of the influence of self-interested, well-organized groups with high stakes in the outcome. Undoubtedly this is often true. But causation in politics is a complex matter. If we find that a group has benefited from a public policy, we know something important, but one thing we do not know is that the policy exists because it benefits that group. If controls on automobile emissions are enacted in a period in which the labor movement is weakening, we know something, but we do not know that the controls are caused by the weakening of the labor movement. These are prosaic claims, but I think they have large implications for many of the arguments of interest-group theory. Peltzman's intriguing article' is generally cautious. But in several places, it becomes rather bold. In explaining the decline of American education from 1960 to 1980, Peltzman claims, \"[T]he plausible rule of politics is substantial.\"2 Later in the article, he says, \"Industry pressure does have a substantial effect on performance.\"3 These claims are reasonable, but we do not know that they are true. Both of them seem to me inadequately supported. I conclude that Peltzman has generated extremely interesting data and shown some suggestive correlations. But he has not yet made any real demonstration of causation.