Showing papers by "Cass R. Sunstein published in 1996"
TL;DR: This paper argued that individual rationality is a function of social norms and that 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 preference, despite the pervasiveness of that idea in positive social science and in arguments about the appropriate domains of law.
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.
689 citations
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TL;DR: In this paper, the authors explore the expressive function of law in making statements as opposed to controlling behavior directly and argue that if legal statements produce bad consequences, they should not be enacted even if they seem reasonable or noble.
Abstract: In this Article I explore the expressive function of law - the function of law in "making statements" as opposed to controlling behavior directly. I do so by focusing on the particular issue of how legal "statements" might be designed to change social norms. I catalogue a range of possible (and in my view legitimate) efforts to alter norms through legal expressions about appropriate evaluative attitudes. I also argue that the expressive function of law makes most sense in connection with efforts to change norms and that if legal statements produce bad consequences, they should not be enacted even if they seem reasonable or noble. Empirical questions loom throughout, and I do offer empirical claims; but my goal is normative as well as descriptive or positive.This Article is divided into seven parts. Part I offers some definitional notes. Part II discusses the use of legal "statements" as a means of correcting social norms that all or most people disapprove. Part III deals with risk-taking behavior. Part IV explores the use of law to fortify norms involving the appropriate use of money. Part V discusses issues of equality. Part VI qualifies the basic argument. It discusses the relationship between the expressive function of law and the issue of consequences; it also explores constraints on the use of law to express judgments about appropriate values.
448 citations
TL;DR: For example, if I had known that not a single lunch counter would open as a result of my action, I could not have done differently than I did as mentioned in this paper. But I did not know that violence would result.
Abstract: If I had known that not a single lunch counter would open as a result of my action I could not have done differently than I did. If I had known violence would result, I could not have done differently than I did. I am thankful for the sit-ins iffor no other reason than that they provided me with an opportunity for making a slogan into a reality, by turning a decision into an action. It seems to me that this is what life is all about.
330 citations
Book•
01 Jan 1996
TL;DR: Sunstein this paper argues that the most glamorous and even glorious moments in a legal system come when a high court recognizes an abstract principle involving, for example, human liberty or equality.
Abstract: The most glamorous and even glorious moments in a legal system come when a high court recognizes an abstract principle involving, for example, human liberty or equality. Indeed, Americans, and not a few non-Americans, have been greatly stirred-and divided-by the opinions of the Supreme Court, especially in the area of race relations, where the Court has tried to revolutionize American society. But these stirring decisions are aberrations, says Cass R. Sunstein, and perhaps thankfully so. In Legal Reasoning, Sunstein, one of America's best known commentators on our legal system, offers a bold, new thesis about how the law works in America, arguing that the courts best enable people to live together, despite their diversity, by resolving particular cases without taking sides in broader, more abstract conflicts. Sunstein offers a close analysis of the way the law mediates disputes in a diverse society, examining how the law works in practical terms, and showing that, to arrive at workable, practical solutions, judges must by necessity avoid broad, abstract reasoning. Why? For one thing, adversaries who would never agree on fundamental ideals are often willing to accept the concrete details of a particular decision. Likewise, a plea bargain for someone caught exceeding the speed limit need not-indeed, must not-delve into sweeping issues of government regulation and personal liberty. Thus judges purposely limit the scope of their decisions to avoid reopening large-scale controversies. Sunstein calls such actions incompletely theorized agreements. In identifying them as a core principle of legal reasoning, he takes issue with advocates of comprehensive theories and systemization, from Robert Bork (who champions the original understanding of the Constitution) to Jeremy Bentham, the father of utilitarianism. Equally important, Sunstein goes on to argue that it is the living practice of the nation's citizens that truly makes law. For example, he cites Griswold v. Connecticut, a groundbreaking case in which the Supreme Court struck down Connecticut's restrictions on the use of contraceptives by married couples-a law that was no longer enforced by prosecutors. In overturning the legislation, the Court invoked the abstract right of privacy; the author asserts that the justices should have appealed to the narrower principle that citizens need not comply with laws that lack real enforcement. By avoiding large-scale issues and values, such a decision could have led to a different outcome in Bowers v. Hardwick, the decision that upheld Georgia's rarely prosecuted ban on sodomy. Legal reasoning can seem impenetrable, mysterious, baroque. This book helps dissolve the mystery. Whether discussing the interpretation of the Constitution or the spell cast by the revolutionary Warren Court, Cass Sunstein writes with grace and power, offering a bold new vision of the role of the law in a diverse society. In his flexible, practical approach to legal reasoning, he moves the debate over fundamental values and principles out of the courts and back to its rightful place in a democratic state: the legislatures elected by the people.
273 citations
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TL;DR: In this paper, the authors argue that the American regulatory state is becoming a cost-benefit state, and argue for a shift from command-and-control to more flexible strategies, including "environmental contracting."
Abstract: Gradually, and in fits and starts, the American regulatory state is becoming a cost-benefit state. This essay argues on behalf of the transformation, as a method for overcoming selective attention, public ignorance, "legislation by anecdote," and rent-seeking. At the same time it identifies three serious risks in current theory and practice: excessive proceduralism; engrafting cost-benefit requirements on top of existing command-and-control regulation; and using the criterion of private willingness to pay in contexts for which that criterion is ill-suited. The essay urges a shift from command-and-control to more flexible strategies, including "environmental contracting." It also attempts to identify and cast light on the most complex issues involving valuation of regulatory benefits.
245 citations
TL;DR: The essay proposes institutional changes designed to ensure aggregate risk reduction rather than mere risk redistribution, including some general remarks about individual and collective rationality in the context of health risks.
Abstract: The fiftieth anniversary of the Administrative Procedure Act2 arrives at a time when administrative institutions are receiving more serious public attention than in any period since the New Deal The New Deal was committed to immensely strengthened national institutions and to large and largely independent bureaucratic entities3 These commitments are now under severe strain Much of this was signalled by the election of President Reagan in 1980 and, in particular, by his promulgation of a controversial executive order calling for attention to the costs and benefits of regulatory initiatives4 In 1993, it was firmly established that a new direction had been set, when President Clinton issued a new executive order that substantially overlapped with President Reagan's5
65 citations
48 citations
01 Jan 1996
TL;DR: In this paper, the basic idea of incompletely theorized agreements is introduced, and a more refined understanding of the ideal of the rule of law is proposed, one that sees a degree of particularity and lawmaking at the point of application as an important part of that ideal.
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
11 citations
TL;DR: In this paper, a qualified defense of "decisional minimalism" is offered, the idea that courts should minimize the burdens of decision and the likelihood and seriousness of errors by offering the narrowest rationale necessary to defend an outcome.
Abstract: This essay offers a qualified defense of "decisional minimalism" -- the idea that courts should minimize the burdens of decision and the likelihood and seriousness of errors by offering the narrowest rationale necessary to defend an outcome. It distinguishes between "shallowness" and "narrowness" and explains the values served by each. It applies the analysis of minimalism not only to Dred Scott, Brown v. Bd., and Roe v. Wade, but also to the central cases of the past term (above all Romer v. Evans, which it defends as salutary minimalism) and future disputes over the right to die, same-sex marriage, and affirmative action.
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TL;DR: In this article, the authors explore health-health tradeoffs, including those that arise because regulatory expenditures increase poverty and unemployment and in that way increase poor health, and propose institutional changes designed to ensure aggregate risk reduction rather than mere risk redistribution.
Abstract: A distinctive and pervasive problem arises when government regulation designed to diminish one health risk actually increases other health risks. For example, bans on the use of asbestos may lead companies to use other, more dangerous substitutes. This essay explores health-health tradeoffs, including those that arise because regulatory expenditures increase poverty and unemployment and in that way increase poor health. The essay proposes institutional changes designed to ensure aggregate risk reduction rather than mere risk redistribution. It includes some general remarks about individual and collective rationality in the context of health risks.
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TL;DR: This essay argues against a right to physician-assisted suicide and suggests that the previous substantive due process cases should be read as involving problems of equal protection or procedural due process.
Abstract: This essay argues against a right to physician-assisted suicide. It urges that the state has sufficient interests -- in protecting against abuse and diminished patient autonomy -- to justify intruding on any "fundamental right." It suggests that the previous substantive due process cases should be read as involving problems of equal protection or procedural due process.
Posted Content•
TL;DR: In this article, a qualified defense of "decisional minimalism" is offered, the idea that courts should minimize the burdens of decision and the likelihood and seriousness of errors by offering the narrowest rationale necessary to defend an outcome.
Abstract: This essay offers a qualified defense of "decisional minimalism" -- the idea that courts should minimize the burdens of decision and the likelihood and seriousness of errors by offering the narrowest rationale necessary to defend an outcome. It distinguishes between "shallowness" and "narrowness" and explains the values served by each. It applies the analysis of minimalism not only to Dred Scott, Brown v. Bd., and Roe v. Wade, but also to the central cases of the past term (above all Romer v. Evans, which it defends as salutary minimalism) and future disputes over the right to die, same-sex marriage, and affirmative action.
TL;DR: This paper argued that the issue of affirmative action should be settled democratically, not judicially, and pointed out that there has been little or no sustained democratic deliberation on the issue and that the citizenry's ambivalence about-or hostility toward-affirmative action has been expressed mostly in private and not in public arenas.
Abstract: In this Essay, I make a simple and somewhat impressionistic argument. I start with the suggestion that the issue of affirmative action should be settled democratically, not judicially. Certainly the Supreme Court should not invalidate most race-conscious remedial programs. But until recently, there has been little or no sustained democratic deliberation on the issue. The citizenry's ambivalence about-or hostility toward-affirmative action has been expressed mostly in private and not in public arenas. The enormous diversity of affirmative action programs, not to mention the separable justifications for and variable efficacy of each program, has not received much public attention. Some programs work well; some do not; and neither empirical data nor public judgments about their content and value have been reflected in program design. In these circumstances, the Supreme Court's apparently odd behavior-its meandering course, its refusal to issue rules-in the affirmative action context might be defended as performing a valuable catalytic function. The Court's willingness to hear a number of affirmative action cases, and its complex, rule-free, highly casuisticalI opinions, have had the salutary consequence of helping to stimulate public processes and directing the citizenry toward open discussion of underlying questions of policy and principle. In these ways, the Court's route has been far preferable to the most obvious alternatives: validation or invalidation of most affirmative action programs pursuant to clear doctrinal categories.