Showing papers by "Cass R. Sunstein published in 1995"

Social Norms and Social Roles

Abstract: This essay challenges some widely held understandings about rationality and choice, and uses that challenge to develop some conclusions about the appropriate domain of law. In particular, it suggests that many well-known anomalies in individual behavior are best explained by reference to social norms and to the fact that people feel shame when they violate those norms. Hence, there is no simple contrast between "rationality" and social norms. Individual rationality is a function of social norms. It follows that social states are often more fragile than might be supposed, because they depend on social norms to which people may not have much allegiance. Norm entrepreneurs -- people interested in changing social norms -- can exploit this fact; if successful, they produce what norm bandwagons and norm cascades. Collective action might be necessary to solve some unusual collective action problems posed by existing norms. And for many purposes, it would be best to dispense with the idea of "preferences," despite the pervasiveness of that idea in positive social science and in arguments about the appropriate domains of law.

Incompletely Theorized Agreements

Abstract: Well-functioning legal systems often tend to adopt a special strategy for producing agreement amidst pluralism. Participants in legal controversies try to produce incompletely theorized agreements on particular outcomes. They agree on the result and on relatively narrow or low-level explanations for it. They need not agree on fundamental principle. They do not offer larger or more abstract explanations than are necessary to decide the case. When they disagree on an abstraction, they move to a level of greater particularity. The distinctive feature of this account is that it emphasizes agreement on (relative) particulars rather than on (relative) abstractions. This is an important source of social stability and an important way for diverse people to demonstrate mutual respect, in law especially but also in liberal democracy as a whole.

Incompletely Theorized Agreements

Abstract: The problem of social pluralism pervades the legal system. Some of the relevant disagreements are explicitly religious in character. Others might be described as quasi-religious in the sense that they involve people's deepest and most defining commitments. Incompletely theorized agreements play a pervasive role in law and society. The argument emphatically applies to legal rules, whether set down by judges, legislators, or administrators. Legal rules are typically incompletely theorized in the sense that they can be accepted by people who disagree on many general issues. Incompletely theorized agreements do not offer such accounts. The Commission reached an incompletely theorized agreement on the value of starting with past averages. There is an association between the effort to attain incompletely theorized agreements and the rule of law ideal. Agreement is important, but disagreement is important too, for it can be a creative force in revealing error and injustice. Incompletely theorized agreements should therefore be subject to scrutiny over time.

The First Amendment in Cyberspace

Abstract: I go on this great republican principle, that the people will have virtue and intelligence to select men of virtue and wisdom. Is there no virtue among us? If there be not, we are in a wretched situation. No theoretical checks, no form of government, can render us secure. To suppose that any form of government will secure liberty or happiness without any virtue in the people, is a chimerical idea. If there be sufficient virtue and intelligence in the community, it will be exercised in the selection of these men; so that we do not depend on their virtue, or put confidence in our rulers, but in the people who are to choose them.1

An Open Letter to Congressman Gingrich

Abstract: We urge you to reconsider your proposal to amend the House Rules to require a three-fifths vote for enactment of laws that increase income taxes.' This proposal violates the explicit intentions of the Framers. It is inconsistent with the Constitution's language and structure. It departs sharply from traditional congressional practice. It may generate constitutional litigation that will encourage Supreme Court intervention in an area best left to responsible congressional decision. Unless the proposal is withdrawn now, it will serve as an unfortunate precedent for the proliferation of supermajority rules on a host of different subjects in the future. Over time, we will see the continuing erosion of our central constitutional commitments to majority rule and deliberative democracy.