Showing papers by "Cass R. Sunstein published in 1998"

A Behavioral Approach to Law and Economics

Abstract: Economic analysis of law usually proceeds under the assumptions of neoclassical economics. But empirical evidence gives much reason to doubt these assumptions; people exhibit bounded rationality, bounded self-interest, and bounded willpower. This article offers a broad vision of how law and economics analysis may be improved by increased attention to insights about actual human behavior. It considers specific topics in the economic analysis of law and proposes new models and approaches for addressing these topics. The analysis of the article is organized into three categories: positive, prescriptive, and normative. Positive analysis of law concerns how agents behave in response to legal rules and how legal rules are shaped. Prescriptive analysis concerns what rules should be adopted to advance specified ends. Normative analysis attempts to assess more broadly the ends of the legal system: Should the system always respect people's choices? By drawing attention to cognitive and motivational problems of both citizens and government, behavioral law and economics offers answers distinct from those offered by the standard analysis.

A Behavioral Approach to Law and Economics

Abstract: Авторы расширяют стандартный подход к экономическому анализу права (базирующийся на предпосылках экономической теории), основывая свой анализ на постулатах поведенческой экономики. В статье разбираются аргументы в пользу использования основ поведенческой экономики при анализе права, объясняются существующие правовые нормы и институты, исследуется, каким образом люди реагируют на информацию, и каким образом эта реакция сказывается на роли права в регулировании общества.

Availability Cascades and Risk Regulation

Abstract: An availability cascade is a self-reinforcing process of collective belief formation by which an expressed perception triggers a chain reaction that gives the perception of increasing plausibility through its rising availability in public discourse. The driving mechanism involves a combination of informational and reputational motives: Individuals endorse the perception partly by learning from the apparent beliefs of others and partly by distorting their public responses in the interest of maintaining social acceptance. Availability entrepreneurs - activists who manipulate the content of public discourse - strive to trigger availability cascades likely to advance their agendas. Their availability campaigns may yield social benefits, but sometimes they bring harm, which suggests a need for safeguards. Focusing on the role of mass pressures in the regulation of risks associated with production, consumption, and the environment, Professor Timur Kuran and Cass R. Sunstein analyze availability cascades and suggest reforms to alleviate their potential hazards. Their proposals include new governmental structures designed to give civil servants better insulation against mass demands for regulatory change and an easily accessible scientific database to reduce people's dependence on popular (mis)perceptions.

Assessing Punitive Damages (with Notes on Cognition and Valuation in Law)

Abstract: Although legal scholars have disagreed about whether juries should be allowed to award punitive damages and about how judges should instruct them, the debate has included little discussion of jurors' cognitive capabilities In this Article, Professors Sunstein, Kahneman, and Schkade respond to this gap by offering an experimental study The study seeks to separate the tasks that a jury is suited to perform from those that a jury can accomplish only with great inconsistency In personal injury cases, the study shows, jurors' normative judgments about outrageousness and appropriate punishment are relatively uniform, at least when measured on a bounded numerical scale (0 to 6) Indeed, these normative judgments are uniform across race, age, education, wealth, and gender When subjects map their judgments onto an unbounded dollar scale, however outcomes become erratic and unpredictable Drawing on these results, the authors question the current legal approaches to the regulation of punitive damages They then analyze various reform proposals designed to overcome erratic awards, including damage caps, compensatory judgement "multipliers," and conversion formulas that translate either jury judgments on bounded numerical scabs or jury arrangement of comparison cases into punitive damage awards Finally the authors discuss the implications of the study for many other issues of law: including contingent valuation and compensatory damages in such areas as pain and suffering, libel, sexual harassment, and intentional infliction of emotional distress Language: en

Shared Outrage and Erratic Awards: The Psychology of Punitive Damages

Abstract: An experimental study of punitive damage awards in personal injury cases was conducted, using jury-eligible respondents There was substantial consensus on judgments of the outrageousness of a defendant's actions and of the appropriate severity of punishment Judgments of dollar awards made by individuals and synthetic juries were much more erratic These results are familiar characteristics of judgments made on unbounded magnitude scales The degree of harm suffered by the plaintiff and the size of the firm had a pronounced effect on awards Some judgmental tasks are far easier than others for juries to perform, and reform possibilities should exploit this fact

Clones and clones : facts and fantasies about human cloning

Abstract: Human cloning is a prospect the contributors to Clones and Clones view with varying degrees of alarm, calm, ambivalence, and not a little humor. Ranging from psychoanalyst Adam Phillips's case study of a child whose confusion of "cloning" and "clothing" expresses our mixed desire and terror of sameness, to Stephen Jay Gould's and Richard Dawkins's "characteristically pithy and intelligent" essays (Civilization); from William Ian Miller's analysis of the queasiness the subject elicits in many of us, to Martha Nussbaum's witty and elegiac fantasy of the cloning of a lost lover-this superb collection limns our beliefs and concerns about what it means to be human. The writers here, says the San Diego Union-Tribune, "comprise an eclectic group, but their observations on the science and ethics of cloning, how it might fit into and affect human society and what the future might bring are just the sort of thinking that ...we need more of." Praise for Clones and Clones: "A worthy exploration of a discomfiting topic." - Foreign Affairs "Greatly aid[s] the cloning debate." - Washington Post "The spectrum of authors and their varying perspectives in fact and fiction are assets to anyone who hopes to understand this broad issue and its vast cultural implications." - Publishers Weekly

Theories and Tropes: A Reply to Posner and Kelman

Abstract: We are grateful to Richard Posner and Mark Kelman for their detailed comments on our article. Their objections come from opposite directions. Judge Posner complains that behavioral economics is not a \"theory\" and is indeed \"antitheoretical\"'; he invokes \"evolutionary considerations\"2 in the interest of providing a unitary account of both rational and \"quasi rational\" behavior, as well as bounded self-interest.3 Posner also thinks that rational choice theory can handle many of the problems we describe. By contrast, Professor Kelman wishes that we were less theoretical. Favoring \"opentextured interpretivism,\"4 he thinks that behavioral economics is in a kind of \"dance\"5 with rational choice theory, and that both dancers suffer from \"hubris.\"6 He suggests that both approaches are mere \"interpretive tropes,\" providing two of many possible understandings of the \"inexorably ambiguous\" data.7

Is Tobacco a Drug? Administrative Agencies as Common Law Courts

Abstract: Professor Cass Sunstein argues that the FDA has the authority to regulate tobacco products. He considers the text of the Federal Food, Drug, and Cosmetic Act, which supports the FDA assertion, and the context of its enactment, which argues against the FDA. He resolves the tension between text and context in favor of FDA jurisdiction by turning to the emerging role of administrative agencies. In modern government, he contends, administrative agencies have become America's common law courts, with the power to adapt statutory regimes to new facts and new values when the underlying statute is ambiguous. Professor Sunstein's Article, like the other pieces in this volume, was written after the United States District Court for the Middle District of North Carolina decided Coyne Beahm v. FDA, but before a three judge panel of the United States Court of Appeals for the Fourth Circuit reversed that decision in Brown & Williamson Tobacco Corp. v. FDA. In Coyne Beahm, the District Court held that the Federal Food, Drug, and Cosmetic Act authorized the FDA to regulate tobacco products, but not tobacco advertising. The Fourth Circuit rejected the District Court's jurisdictional ruling and invalidated the FDA's regulations in their entirety. The Clinton Administration has since requested an en banc rehearing before the Fourth Circuit.

Health-Health Tradeoffs

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 entities.3 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 initiatives.4 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's.5