Showing papers by "Cass R. Sunstein published in 1997"

Free markets and social justice

Abstract: The newest work from one of the most pre-eminent voices writing in the legal/political arena today, this important book presents a new conception of the relationship between free markets and social justice The work begins with foundations-the appropriate role of existing "preferences," the importance of social norms, the question whether human goods are commensurable, and issues of distributional equity Continuing with rights, the work shows that markets have only a partial but instrumental role in the protection of rights The book concludes with a discussion on regulation, developing approaches that would promote both economic and democratic goals, especially in the context of risks to life and health Free Markets and Social Justice develops seven basic themes during its discussion: the myth of laissez-faire; preference formation and social norms; the contextual character of choice; the importance of fair distribution; the diversity of human goods; how law can shape preferences; and the puzzles of human rationality As the latest word from an internationally-renowned writer, this work will raise a number of important questions about economic analysis of law in its conventional form

Behavioral Analysis of Law

Abstract: The future of economic analysis of law lies in new and better understandings of decision and choice.' In the last two decades, social scientists have learned a great deal about how people actually make decisions.2 Much of this work calls for qualifications of rational choice models.3 Those models are often wrong in the simple sense that they yield inaccurate predictions. Cognitive errors and motivational distortions may press behavior far from the anticipated directions; normative accounts of rational choice should not be confused with descriptive accounts.4 But it does not follow that people's behavior is unpredictable, systematically irrational, random, rule-free, or elusive to social scientists. On the contrary, the qualifications can be described, used, and sometimes even modeled. Those qualifications, and the resulting understandings of decision and choice,5

A Note on “Voluntary” versus “Involuntary” Risks

Abstract: Ordinary people seem to perceive voluntarily incurred risks as less troublesome than involuntarily incurred risks. Consider the diverse public reactions to airplane crashes and automobile crashes. Or consider the fact that tobacco is by far the largest source of preventable deaths in the United States. Why do we not devote much more of our regulatory effort to reducing smoking? The reason seems to lie in a judgment that smoking is a voluntary activity, and hence, the resulting deaths are less troublesome than are other sorts of deaths. People have voluntarily assumed the relevant risks. This idea helps account for the fact that the government devotes relatively little in the way of resources to control not only smoking, but also to combat the habits of poor diet and insufficient exercise, which produce at least 300,000 premature deaths every year. The distinction between voluntary and involuntary risk may well be the central element in the difference between lay and expert judgments about risk. Experts tend to focus on aggregate lives at stake; lay people care a great deal whether a risk is undertaken voluntarily. Their concern on this score seems quite reasonable, in part because it accords so well with widespread intuitions. But my basic claim here is otherwise. I suggest that judgments about whether a risk is “involuntary” often stem from confusion and selective attention, and that the real basis for such judgments frequently lies in an antecedent judgment of some other kind. It is important to identify and defend such judgments. More generally, and more importantly, I contend that the effort to exempt “voluntary” risks from governmental concern— undoubtedly a response to the public demand for regulation—results in hundreds of thousands of unnecessary and preventable deaths each year. If the government focused its attention on more of the supposedly “voluntary” causes of death—consider smoking, poor diet and exercise, and automobile accidents—it could save an enormous number of lives, and it could do so at a relatively low cost.

The right to die.

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.