Showing papers by "Cass R. Sunstein published in 1994"

Incommensurability and Valuation in Law

Abstract: In this article I explore two claims and discuss their implications for law. The first claim is that human values are plural and diverse. By this I mean that we value things, events, and relationships in ways that are not reducible to some larger and more encompassing value. The second claim is that human goods are not commensurable. By this I mean that such goods are not assessed along a single metric. For reasons to be explored, the two claims, though related, are importantly different.

Incompletely Theorized Agreements Commentary

Abstract: ions. See infra p. 1747. 1736 (Vol. 108:1733 HeinOnline -108 Harv. L. Rev 1736 1994-1995 INCOMPLETELY THEORIZED AGREEMENTS agreement on foundations may produce disagreement on particulars. What I am emphasizing is that, when closure cannot be based on relative abstractions, the legal system is often able to reach a degree of closure by focusing on relative particulars. Examples of this kind are exceptionally common. They are the day-to-day stuff of law. When the convergence on particular outcomes is incompletely theorized, it is because the relevant actors are clear on the result without being clear, either in their own minds or on paper, on the most general theory that accounts for it.\"I Some people may not have decided on the best general theory; in their individual capacities, they may think that it is unnecessary to choose among competing general theories, because whatever theory is best, the same result follows. It is common for a judge to believe that a certain outcome is right because all possible theoretical positions lead to it. Alternatively, a particular judge may believe that he knows which theory is best, but may not be able to say so in an opinion, for fear of being outvoted, or because other judges on his court are uncertain whether he is right and would prefer to leave the more abstract issues for another day. Often judges can agree on an opinion or rationale offering lowlevel or mid-level principles and taking a relatively narrow line. They may agree that a particular rule is binding and makes sense a sixty-five mile-per-hour speed limit, a requirement that people be provided a hearing before losing their homes without agreeing on or entirely understanding any set of purported foundations for their belief. They may accept an outcome reaffirming Roe v. Wade,' 2 protecting sexually explicit art without knowing or converging on an ultimate ground for that acceptance. Reasons are almost always offered,' 3 and in this sense something in the way of abstraction accompanies the outcome; reasons are by definition more abstract than the outcome for which they account. But the relevant actors seek to stay at the lowest level of abstraction necessary for the decision of the case. They hope that the reasons that have been offered are compatible with an array of deeper possible reasons, and they refuse to make a choice 11 Interesting issues of collective choice lurk in the background here. Important problems of cycling, strategic behavior, and path dependence may arise in multimember bodies containing people with divergent rationales, each of whom wants to make his rationale part of law. See generally KENNETH J. ARRow, SOCIAL CHOICE AND INDIVIDUAL VALUEs passim (2d ed. 1963) (analyzing problems of public choice). There may also be complex bargaining issues as some officials or judges seek to implement a broad theory as part of the outcome, while others seek a narrow theory, and still others are undecided between the two. These important issues are beyond the scope of the present discussion, though it would be most illuminating to have a better grasp, theoretically and empirically, of the sorts of bargaining games that occur when officials and judges decide on the scope of the theory to accompany an outcome. Cf. DOUGLAS G. BAIRD, ROBERT H. GERTNER & RANDAL C. PICKER, GAME THEORY AND THE LAW 6-49 (1994) (applying game theory models to analyze how players choose among different legal regimes). 12 410 U.S. 113 (1973). 13 For exceptions, se6 the discussion below at pp. 1754-60. 1995] 1737 HeinOnline -108 Harv. L. Rev 1737 1994-1995

Political Conflict and Legal Agreement

Abstract: How is law possible in a heterogeneous society, composed of people who sharply disagree about basic values? Such disagreements involve the most important issues of social life: the distribution of wealth, the role of race and gender, the nature of free speech and private property. Much of the answer to this puzzle lies in an appreciation of how people who disagree on fundamental issues can achieve incompletely theorized agreements on particular cases.Lecture I sets out the basic idea of incompletely theorized agreements and argues that such agreements have many virtues. It offers analogical thinking as a case in point - this is the way that ordinary lawyers and indeed ordinary people often try to solve legal and ethical problems. For a system of law, analogical thinking, as a basis for incompletely theorized agreements, can be desirable because it is so much less sectarian, hubristic, and demanding than deep theories about (for example) equality, or liberty, or economic efficiency. Society is sometimes too sharply divided or confused about such theories to permit them to be foundations for judge-made law, which requires agreements among people who have little time and limited capacities, who must find a way to live together, who believe that values are plural and diverse, and who should show respect to one another’s most defining commitments.Hence incompletely theorized agreements play a large role in interpretation of both statutes and the Constitution itself; many of our basic rights are a product of such agreements.Lecture II opposes rules to rulelessness. Its principal goal is to point the way toward a more refined understanding of the ideal of the rule of law, one that sees a degree of particularity, and a degree of lawmaking at the point of application, as an important part of that ideal. It defends a form of casuistry and describes the potentially democratic foundations of the casuistical enterprise in law. The lecture begins by describing the distinctive advantages of rules and law via rules, especially as a means for providing a consensus on what the law is from people who disagree on so much else. It also discusses two attacks on decisions according to rule: the view that controversial political and moral claims always play a role in the interpretation of rules, and thus that rules are not what they appear to be; and the view that rules are obtuse, because they are too crude to cover diverse human affairs, and because people should not decide cases without closely inspecting the details of disputes. Giving special attention to the death penalty and broadcasting regulation, it offers two ways out of the dilemmas posed by rules and rulelessness: (a) a presumption in favor of privately adaptable rules, that is, rules that allocate entitlements without specifying outcomes, in an effort to promote goals associated with free markets; and (b) highly contextualized assessments of the virtues and pathologies of both options, in an effort to promote democratic goals of responsiveness and open participation.The lectures end with the suggestion that incompletely theorized agreements on particular outcomes play a large role not only in law, but also in many other sectors of social life, prominently including democratic discussion.

Well-Being and the State

Abstract: Some people think that there is a deep opposition between "government intervention" and "free markets." But the opposition is too simple. No one is really opposed to "government intervention." Markets depend for their existence on law, which is necessary to establish property rights and to set out the rules governing contracts and tort. Short of anarchy, a system of legal entitlements, set by the state, is inevitable.1 If we are asking whether the state is an important part of the solution to current social problems, there can be only one answer: it had better be. But what is the relationship between the state and social well-being? This question assumes special significance in light of the original aspiration of the American founders to create a deliberative democracy.2 Public officials would be accountable to the citizenry at large, but they were also supposed to engage in deliberative tasks, and to profit from and to encourage deliberation among the people as a whole. Both the structure of the national government and the system of individual rights were intended to encourage public deliberation. Things have not worked out as the Framers envisioned. One of the most serious problems is the public emphasis on issues and events that have little relevance to most people's lives. People lack accurate information about what is most important.3 In elections, for example, "soundbite politics" often replaces discussion about public issues.4 The problem affects day-to-day governance too. Instead of focusing on, for example, education and its improvement, public attention is often directed to sensational anecdotes, crude oversimplifications of issues,

On costs, benefits, and regulatory success: Reply to Crandall

Abstract: Robert Crandall writes as if the regulatory state is a simple failure. In fact, however, from the economic point of view there have been many successes, in the form of regulations whose benefits exceed their costs. Moreover, economic criteria are inadequate for evaluating regulatory performance, since even well‐aggregated private willingness to pay provides a poor basis for assessing government regulation. It is now necessary to move beyond sterile debates about whether regulation is desirable; nonregulation is not an option, since laissez faire is itself a regulatory system. Democratic, economic, and constitutional criteria hold out the promise of much better regulatory tools, in the form of flexible incentives rather than rigid commands.

Same‐sex relations and the law

Abstract: Decisions of individuals relating to homosexual conduct have been subject to state intervention throughout the history of Western Civilization. Condemnation of those practices is firmly rooted in Judeo-Christian moral and ethical standards˜. Blackstone described ‘the infamous crime against nature’ as an offense of ‘deeper malignity than rape’…

Incommensurability and Valuation in Law

Abstract: In this article I explore two claims and discuss their implications for law. The first claim is that human values are plural and diverse. By this I mean that we value things, events, and relationships in ways that are not reducible to some larger and more encompassing value. The second claim is that human goods are not commensurable. By this I mean that such goods are not assessed along a single metric. For reasons to be explored, the two claims, though related, are importantly different.